Archive for the ‘courts’ 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.

Twitter PSA: Canadian Legal Edition

December 19, 2013









Third Party




The Applicants, The Government, The Police, Your Employer, John Does, One-Infiinity (collectively “just about everybody”) hereby give notice to the Respondent, You (yes, this means you) that what you say on Twitter can and will be used against you in a court of law (or adminstrative tribunal):

To Wit:

Exhibit “A”:

 [para 53]     The Applicant has also provided me with a screenshot of a “conversation” that took place in January 2012 on a social media site (Twitter) between accounts that appear to belong to the Applicant and the Minister (another, unknown, user was involved in the conversation as well). While I do not know for certain that the Twitter account that appears to belong to the Minister is, in fact, the Minister’s account, the Public Body has not denied the allegations made by the Applicant, or challenged the evidence. I conclude, on a balance of probabilities, that the account that appears to belong to the Minister does belong to the Minister and that therefore the Minister discussed the Applicant’s access request on Twitter.

[para 54]     One of the statements (tweets) from the Minister’s account names the Applicant and states “You FOIPPed my personal correspondence with kids’ pictures.” Although the Applicant’s request captured this information due to its breadth (discussed above), this statement suggests the request had a motive of interfering in the Minister’s personal life that it did not have in fact.

[para 55]     The Applicant insists that he was not seeking personal communications or pictures of the Minister or his family. He argues that the Public Body could have withheld the pictures under the Act (the Public Body states that some of the records were outside the scope of the Act, per section 4(1)(o), but that discretion was exercised and the records were provided outside of the Act). The Applicant seems to be arguing that the records he is alleged to have sought (pictures of the Minister’s children) are outside of the scope of the FOIP Act and so could not have been part of his request.

[para 56]     Regardless of whether the Applicant intended to or could include personal records of the Minister in his access request, and regardless of the Minister’s intent in calling the Applicant’s supervisor and making the comment on Twitter, the phone call and Twitter posting may be viewed as being disparaging toward the Applicant, both to his supervisor and to the public.

[para 57]     Moreover, a Twitter conversation takes place in an entirely public realm. The Minister’s implicit condemnation of the request could have had a “chilling effect” not only on the Applicant, but on any other person who viewed the conversation. It is plausible that a fear of similar public reprisal could make individuals reluctant to make access requests. In other words, this type of public denouncement of an applicant could have a deleterious effect on the access-to-information process. [emphasis added]

 ReferenceAlberta Education (Re)2013 CanLII 69856 (AB OIPC),

Exhibit “B”:

[9]        However, it is in their personal contact and communication, i.e. about each other, where there is dysfunction evident. The mother’s testimony was to the effect that she remains under stress because of the father’s interaction and comments (or lack thereof) towards and about her. And, the evidence supports that lingering worry. This Court outlined some of that evidence in the interim ruling. The father says that his comments about his wife were situation specific and confined to a brief period. Yet, the more recent evidence is that just last month he inexcusably put on Twitter (as almost everyone knows, a form of social media interaction open to the world) a dedication page for a cookbook he is writing in which the dedication to his wife is scratched out, but still readable. Understandably, this only exacerbated the mother’s upset. The father, albeit somewhat reluctantly, acknowledged that this was not proper. More importantly, though, in his testimony he genuinely seemed to want a “fresh start”. And, the mother did acknowledge that very lately they have resorted to some personal communications beyond the log book that she said were “civil”. She said much about what went on in the past when she described those exchanges as “refreshing”. [emphasis added]

Reference: EKI v MGS2013 NBQB 406 (CanLII),

Exhibit “C”:

[145]      Comments Graves had made on his Twitterr account could, at first impression, be construed as supporting a finding that he had decided on his conclusion before beginning the study. On a closer examination, I find that they show him discussing whether analysis of the data would show a voter suppression effect, then progressing towards hoping to find such an effect.  Some of the tweets, in sequence, say for instance: “That is why I don’t know if it is testable and I am agnostic as to impacts.”; “From what I understand so far I think the hypothesis of effects is testable.  I am not sure what the results would be.”; “I think one could actually design a statistical test that would give some guidance on this. I am agnostic as to answers.”; “Damn! maybe it wasn’t the polls that were off after all. Maybe it was the election.” They gave me some concern but I was ultimately satisfied on his evidence as a whole, particularly his acknowledgement of the weaknesses of the methodology that he had validly arrived at his conclusion through a genuine analysis of the data.

[146]      In arriving at a conclusion on the admissibility of this evidence, I have not overlooked the fact that Graves demonstrated a lack of common sense and respect for the Court when he testified. When asked to step outside during a discussion which the Court had with counsel, he chose to follow the live report of that discussion by journalists in the courtroom. I have reviewed the transcript of what was said during that discussion and am satisfied that it did not have a material effect on his testimony. As noted above, I was not persuaded that the line of cross-examination being pursued by counsel was relevant. I also recognize that Mr. Graves was given no instruction not to access the reporters’ live transmission from the courtroom nor were the journalists instructed not to report what was said in his absence. Nonetheless, this showed poor judgment on Mr. Graves’ part for which he subsequently apologized to the Court.

[147]      Having reviewed the arguments and the lengthy cross-examination of Mr. Graves in the record I was not persuaded that the respondent MPs had made out a case that he was not qualified to carry out the survey he was retained to conduct or that his opinion reflected partiality. The respondents have not attacked Mr. Graves’s professional opinions but his personal views and motivation in accepting the retainer. I was satisfied that he had objectively presented the challenges and limitations of the survey methodology in his report. I find that his opinion evidence meets the standard for admissibility set out in Mohan, above. For that reason, I dismiss the motion to disqualify Mr. Graves and strike his evidence. I will have more to say about the weight I have given his evidence below.

Reference: McEwing v. Canada (Attorney General)2013 FC 525 (CanLII),

Exhibit “D”:

[104]      I agree with Defence counsel that Ms. Peters was not entirely truthful when she testified about whether drugs were being dealt out of her home. Her evidence about selling only Century Sam cigars made no sense. She admitted smoking marihuana recreationally and testified that is why she had the scale. Ms. Peters denied that people were coming to her house to buy drugs and denied that marihuana was being sold from her house or that this was why her house became a “chill spot”. In that regard I prefer the evidence of Mr. Hersi; his evidence makes much more sense and explains why Ms. Peters still had Century Sams that she would sell from her home and why her house became a chill spot. In fact at one point in her evidence when being questioned by Mr. Stastny, Ms. Peters did say that they were selling “blunts” which had already been described in the evidence as a marihuana cigarette made from the paper of a Century Sam cigar. Because this evidence appeared to be at odds with her evidence that they were only selling Century Sams without marihuana, I asked Ms. Peters a question. She responded that she used the term “blunt” meaning just a Century Sam. I do not accept that evidence and believe she was trying to justify her mix up in using the term blunt when she did not intend to. I also agree with Mr. Stastny that the fact drugs were being dealt out of her home is corroborated by a post she admitted that she made on Twitter after the robbery and in particular her reference to “stacks”; which I will come to.

[105]      There is also the inconsistency in Ms. Peters’ evidence generally concerning the Twitter messages following the robbery. In her evidence in chief Ms. Peters admitted that she posted something on Twitter the day of the robbery or the day after. She was not sure of exactly what she said but it was along the lines of querying how someone could do a home invasion with two children there. She testified that after she posted it I.G.’s brother said something ignorant to her and so she took it down. Mr. Stastny showed Ms. Peters copies of messages that she had posted on Twitter. She recognized them and gave evidence about them. Although I appreciate, as submitted by Ms. Stanford, that because we do not have all the tweets, there is a question of context to consider, in my view these tweets are very much at odds with Ms. Peters’ evidence in chief, even if I accept that they were in response to a tweet that she was a “fucking rat”. [emphasis added]

Reference:  R. v. Brown2013 ONSC 2349 (CanLII),

Exhibit “E”:

32)                  The petitioner and Mr. Sanderson are also heavy Twitter users. Twitter is an online social networking service and micro-blogging service that enables its users to send and read text based messages of up to 140 characters with their friends or others who follow their Twitter account. In short, if you have an appetite to share the minutiae of your daily routine with friends and acquaintances, then Twitter affords you an opportunity to serve up a feast.

33)                  The respondent produced numerous Twitter messages sent out by Mr. Sanderson. It would appear from the nature of the messages that Mr. Sanderson and the petitioner use the same Twitter account. In any event, the Twitter messages (known as tweets) are clearly about Mr. Sanderson and the petitioner. More to the point, the respondent maintains that they illustrate the petitioner and her partner enjoying a glitterati lifestyle.

36)                  The petitioners commitment to a busy social life is obviously strong as she was on a disability from July 2011 to August 2012. It is worthwhile noting that Mr. Sanderson was also on disability for a time after July 11. It is unclear as to when he ceased being on disability.

37)                  The juxtaposition of the petitioner’s life with Mr. Sanderson from their Twitter account is difficult to reconcile with her affidavit evidence which suggests that she and her new spouse are essentially part of the working poor. [emphasis added]

Reference: Beattie v Beattie2013 SKQB 127 (CanLII),

Exhibit “F”:

Section Q        Defendant’s Twitter Account

[61]           The plaintiff seeks a list of the defendant’s Twitter followers. Rancourt has tweeted about St. Lewis and this libel action. The defendant sent out a tweet that disseminated a National Post article that reported on his allegedly defamatory ‘House Negro’ publication. St. Lewis submits that the defendant is deliberately drawing attention to his defamatory publications and expanding the base of people who know about his defamatory statements about St. Lewis and that the location of these people (local, national, and international) and who they are (ex: media, other professors, students) is relevant to the issue of the breadth of the damages that the defendant causes to St. Lewis and to the issue of malice.

[62]           Rancourt submits that tweets are not electronic person to person messages but rather like a posting to a web page, which are public, and any follower may choose to access and read. Rancourt states that he has already provided the list of his 79 Twitter followers. If he has done so, then I find the question has been adequately answered. If he has not done so, then I would order Rancourt to provide the list of his 79 Twitter followers. I agree with Rancourt’s submission that he would not have knowledge of other members of the public who may have read his tweets. [emphasis added]

ReferenceSt. Lewis v. Rancourt2013 ONSC 1350 (CanLII),

Exhibit “G”:

[113]      S.B.C. understood from B. that sometimes M.v.D. tries to get B. to call him “Dad.” S.B.C. indicated that he would have grave concerns that M.v.D. would try to be B.’s father if B. were with F.A.C. and M.v.D. in Australia. Given the Facebook comments, S.B.C. was concerned that M.v.D. would not represent him in a good light to B. On cross-examination, S.B.C. agreed that he had entries on his twitter page to the effect that “Dutch bald men are creepy and try to steal your kids and try to be their dad,” referring to M.v.D.

[192]     When shown copies of her twitter account, J.M. agreed that M.v.D. is bald and she tweeted about baldness and obesity. [emphasis added]

Reference: S.B.C. v. F.A.C.2013 BCSC 211 (CanLII),

Exhibit “H”:

9.      The parties were previously before the Landlord and Tenant Board on January 3, 2013. RER submitted a copy of January 3, 2013 ‘Twitter’ messages in which ML wrote “My Landlord is jokes. Sitting in court because she assumes that I do crack”.  ML further wrote “sitting in the same room with my landlord for 3 and a half hours. I just want to punch her in the face. Not fair. can’t”. ML’s twitter message further demonstrates ML’s contempt for the Landlord and her disregard for the issues raised by the Landlord’s application.

10.   RER feared for her safety after reading ML’s Twitter message. Police were called to address the message with ML.  Since the Twitter message, RER will no longer communicate directly with ML. [emphasis added]

Reference:NOL-10719-12 (Re)2013 CanLII 11095 (ON LTB),

Exhibit “I”:

The proper forum to bring allegations against someone is one in which the veracity of the allegations can be determined by someone who has the authority to do so, and the accused party has the opportunity to respond to the accusations.  By making unfounded allegations through Twitter and Facebook and through communications to public offices which do not have the authority to determine the veracity of the allegations, the Tenant has contributed to harming the reputation of the Landlord and that of one of the Landlord’s employees.  I therefore believe that this conduct substantially interferes with a lawful right, privilege or interest of the Landlord. [emphasis added]

Reference: EAL-25210-12 (Re) , 2012 CanLII 74660 (ON LTB)

 Exhibit “J”:

[7]               I heard the evidence of Detectives Hill and Garrow as well as Detective Bui and the other officers involved in the arrest of Mr. Sonne and those who had physical contact with him following his arrest. In addition, it was agreed that I could have regard to information on Mr. Sonne’s Twitter account that the Crown argued shows that Mr. Sonne was well aware of his legal rights upon arrest.

[32]           Mr. Byrne filed, on consent, several exhibits that were copies of documents that could be found by clicking on links to postings by Mr. Sonne on his Twitter account. In his Tweet on June 21, 2010, Mr. Sonne posted: “read EVERY PDF on this page and know your rights.” There was a link from this Tweet to “” and the materials there all relate to what was described as G20 specific resources materials. This included a pocket-size “Know Your Rights Flyer”, a “Legal Guide for Activists” and a brochure entitled “What to do if the police come knockin’.” The flyer makes it clear that one should not answer any questions or give any statements apart from name, address and date of birth. The legal guide is intended to provide the person who reads it with an overview of their rights when dealing with the police. It also deals with what a person should do if arrested by police. This includes asserting the right to silence. The brochure is to the same effect.

[33]           As Mr. Sonne did not testify, there is no evidence from him as to his understanding of these documents although given his Tweet, it is reasonable to infer that Mr. Sonne had read these documents and was generally familiar with their contents. These documents provide no information with respect to the secondary caution as I have defined it.

[49]           It was at this point in Detective Garrow’s notes that he noted Detective Hill asking Mr. Sonne whether he belonged to any social groups. Mr. Sonne told them that he had no knowledge of protest groups but that he did belong to a social group called, the Toronto Area Security Klatsch; a surveillance club for collecting pro and anti surveillance things and a Facebook group. He was then asked if he had heard anyone talking about the G20 in Toronto and Mr. Sonne told them he had been to 1266 Queen Street which he called the Convergent Space. Detective Hill asked him if there were any groups planning any acts of violence and Mr. Sonne said these groups were mostly talking and the people were not violent people. In cross-examination, Detective Garrow testified that he did not recall Detective Hill asking Mr. Sonne about postings on the Internet or things that were on Twitter. He admitted it was possible, however, as he could not get everything down in his notes.

… [64]           Detective Dunlop testified that when he arrived at 13 Division at 10:30 p.m., it was brought to his attention that Detectives Hill and Garrow had spoken to Mr. Sonne and he obtained some information from them. He was told that Mr. Sonne had chemicals in his house and that the Emergency Task Force had to be involved, that Mr. Sonne had advised Detectives Hill and Garrow that he had all this property because he belonged to a rocket club. Detective Dunlop was also told about a website on Twitter called TorontoGoat with photos of security fencing and cameras and their positions, that Mr. Sonne was a member of Hacklab that met at 1266 Queen Street, and that Mr. Sonne was a reverse engineer and an IT security specialist. It was not expressly confirmed that this additional information came from Detectives Hill and Garrow but clearly some of it did as it corresponds with information Detective Garrow noted from their interview of Mr. Sonne.

[136]      In this regard Mr. Sonne’s knowledge of his rights, based on the information he had posted on Twitter and his obvious sophistication, intelligence, and willingness to challenge the police when he did not agree with something being said to him corroborates my conclusion on the rest of the evidence that he was not swayed by anything said by Detectives Hill and Garrow. With Detective Bui, it is clear that he was fully aware of his ability to choose what questions he would answer and what he would not.  His ability to evaluate what was being said to him and his willingness to challenge Detective Bui when he said something that he did not agree with was also clear. He frequently refused to discuss certain matters and was clearly not afraid to challenge Detective Bui when he disagreed with something he had said. He displayed an understanding of his rights and the law that was far beyond that exhibited by the typical accused. Furthermore, there was no suggestion that he was under any misapprehension that what he told Detective Bui might not be used against him and in fact he repeatedly made it clear that he realized that what he told Detective Bui could be used against him. [emphasis added]

Reference: R. v. Sonne2012 ONSC 1741 (CanLII)

Govern yourself accordingly.

 Dewey, Sueham and Howe, LLP

The Twittersphere

Anyplace, Anywhere, Anytime

Ontario appeal court allows appeal, lifts stay in Yaiguaje v. Chevron Corp.

December 17, 2013

Chevron Corporation

The Court of Appeal for Ontario has just released its judgment in Yaiguaje v. Chevron Corporation, 2013 ONCA 758; (“Yaiguaje“) a significant conflict of laws decision which will have major repercussions beyond cross-border and international litigation.

For a backgrounder, see Alejandro Manevich’s guest post: Lago Agrio comes to Ontario: Chevron and the $19B judgment and also my guest posts: The Motions to Dismiss inYaiguaje, and Comments on the Lago Agrio Plaintiffs Enforcement Action in Canada over at Ted Folkman’s Letters Blogatory.


(Access to) Justice Delayed, (Access to) Justice Denied

September 17, 2013

Access To Justice Problem Solved

Yamri Taddese at Law Times reports on some welcome, albeit late, efforts to resolve the interminable motion delays in Toronto:

Acknowledging there are “real delays” with scheduling long motions in Toronto, Smith said she and regional senior Justice Edward Then “have already begun to review scheduling efficiencies and how the court’s judicial resources can be maximized.”

Then has asked Superior Court Justice Geoffrey Morawetz to lead a motions effort to identify ways of maximizing both facilities and judicial resources for a more efficient system, Smith said, noting the review will also consider the issue of better case management.

The Law Times article adds,

Superior Court Justice Mary Vallee called the delays “shameful” and decided against moving the case to Toronto.

A case, of course, would need some connection to Toronto for counsel to bring up the idea of moving it there, says Oatley. But his firm has decided that even when there’s some connection to Toronto, it will challenge such motions on access to justice grounds.

“The government is simply going to have to accept the fact that if we’re going to have a viable justice system in Ontario, they need to provide the administration of justice the resources to do the job,” he says.

Whenever he can, lawyer John McLeish says he’ll book cases outside of Toronto. “It’s a shame because the judges here are great,” he says.

In my opinion, the causes of the systemic delay are easily identifiable:

1. The revision of the Rule 77 case management rule has hoisted onto plaintiff’s counsel’s shoulders the sole burden to move a case along to trial. Defence counsel are prone to bringing superfluous motions to tie up the litigation, armed with the knowledge of institutional delay of 6-7 months to secure a motion date in Master’s court;

2. The concept of a Litigation Timetable and Discovery Plan is great in theory; however, the failure to abide or comply with a consent or court-ordered timetable rarely results in any tangible consequences for non-compliance, such as substantial indemnity costs or striking of a defence. Having to wait half a year to bring a motion to force an opposing party to comply is quixotic;


3.  The Rules of Civil Procedure are skewed towards procedural inefficiency. For example, while any Superior Court judge has jurisdiction to hear all motions, many motions are implicitly designated to be brought “to the court” (i.e. Masters), leaving an access to justice vacuum.

4.  There are simply not enough Masters appointed to hear motions based upon the sheer volume of court files in Toronto. This is a function of chronic underfunding of the civil justice system in Ontario.  What is the Ministry of Attorney General’s response?

Brendan Crawley, spokesman for the Attorney General of Ontario, said the ministry isn’t planning on appointing new masters.

The ministry, he said, has worked with the legal community “to improve and modernize Ontario’s civil justice system, making it more accessible and affordable for the public.”

I am cautiously optimistic that Mr. Justice Morawetz —who is among the leading jurists in Ontario and fully conversant with judicial efficiency on the Commercial List Court — will find a practical and practicable solution to this motion court boondoggle.  The following are my unsolicited solutions:

1.  Restore the procedural balance under the Rules of Civil Procedure by imposing an equal obligaiton between plaintiffs and defendants and counsel of record to ensure that a case moves efficiently and speedily towards trial;

2.  Consider revising Rule 77 case management screening when an action is commenced by allowing the plaintiff or defendant to request case management as an option, rather than an exception to litigation management;

3. The Ministry of the Attorney General  must appoint at least 3 additional full-time Masters and loosen the requirement of Regional Senior Justice judicial oversight for case management transfers;

4. When all else fails, amend the mechanism of administrative dismissal by the Registrar, by allowing Status Hearing judges or Masters to transfer matters to case management sua sponte, or upon request of one or more of the parties; rather than slavish reliance on consent litigation timetables;

5. Allow Masters or Judges to schedule case conferences via telephone or email ,rather than requiring in person attendances, where available.

Access to Justice is inchoate unless it is equal, timely, effective and efficient:  Justice delayed is justice denied.

Pottow et al., “A Presumptively Better Approach to Arbitrability”

September 3, 2013

John A. E. Pottow (University of Michigan Law School), Jacob Brege and Tara J. Hawley (J.D. Candidates, University of Michigan Law School) have published “A Presumptively Better Approach to Arbitrability”, Canadian Business Law Journal, Vol. 53, No. 3, March 2013/U of Michigan Law & Econ Research Paper No. 13-012/U of Michigan Public Law Research Paper No. 339. Here’s the abstract:

One of the most complex problems in the arbitration field is the question of who decides disputes over the scope of an arbitrator’s purported authority. Courts in Canada and the United States have taken different approaches to this fundamental question of “arbitrability” that necessarily arises when one party disputes the contractual validity of the underlying “container” contract carrying the arbitration clause. If arbitration is a creature of contract, and contract is a product of consensual agreement, then any dispute that impugns the underlying consent of the parties to the container contract implicates the arbitration agreement itself (i.e., no contract, no arbitration agreement).

The U.S. approach of “separability” dates back a half-century to a Supreme Court case that was controversial when it was decided and remains so today. The Supreme Court has added several more decisions trying to clarify its arbitrability rules within just the past few years. The Canadians too have tried to sort out this mess, seizing upon the hoary legal distinction between law and fact, also offering recent Supreme Court pronouncements. Neither country’s approach is normatively or functionally satisfying.

After discussing and critiquing the two approaches comparatively, we offer our own proposal. We too deploy legal presumptions, but in our case we focus on what we contend are the two most relevant criteria: (1) the nature of the legal challenge to the underlying container contract, and (2) the type of contract at issue. Challenges to consent in contract formation and contracts involving adhesion should be specially scrutinized by the courts before carting parties off to arbitration, whereas commercial agreements between sophisticated actors should presumptively be for arbitral resolution, even for “constitutive” challenges to the underlying contract.

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

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