Date: Tue, 4 Jul 2006 13:30:12 -0400

From: David Cheifetz

Subject: Question from John Murphy

The other side of John's question is the willingness of an appellate court to overrule a decision because of the identity of the deciding judge. This situation also fits nicely within Lionel's first sentence.

In that vein, there's this from Madam Justice Southin of the British Columbia Court of Appeal in Reilly v. Lynn, 2003 BCCA 49 (CanLII) [dissenting], although the comment deals specifically with findings of fact, not conclusions of law. The issue was the BCCA's scope of appellate power to alter lower court findings of fact.

[89] Founded on local knowledge, we should be able, without resorting to catch phrases … in deciding whether to accept a trial judge's findings of fact, to take into account what we know of the judge [this is today only rarely of any importance but fifty years ago, when the Province had some very bad trial judges who were given to leaping to conclusions, thereby avoiding the weary task of thinking, it mattered a great deal - it would be naïve to pretend that the judges of this Court in those days did not have regard to the reputation of the trial judge whose judgment was in issue in determining whether or no to accept his findings of fact] ....

...

[92] So far as I am concerned what underlies my raising this point is that I have concluded that justice, in the broad sense, is served more often by getting the facts right than by worrying about what the law is.

Imagine that - an appellate judge conceding in public, in print, that even today some trial judges may be problematic. Not surprisingly, the majority (at para 96) disavowed this part of the dissent.

Non-Canadian readers of this list probably won't know that Madam Justice Southin has been on the bench for years and has a bit of a reputation for being outspoken.

David Cheifetz

-----Original Message-----
From: Lionel Smith
Sent: July 3, 2006 3:45 PM
Subject: Re: ODG: Question from John Murphy

Surely any judge who thought a decision should be overruled but hesitated solely on the ground that the earlier judge was still alive would be aware that this was entirely unprincipled and so would never admit it, however diplomatically, in public? Overruling raises a lot of difficult questions but I have never heard the suggestion that it should depend on the state of anyone's health.

There is a tenuously related story, however, that can be verified by anyone in the law reports. In Nicholls v. Ely Beet Sugar Factory Ltd., [1936] 1 Ch. 343 (C.A.) at 349, Lord Wright M.R. said of Pollock on Torts that it was "a work, fortunately not a work of authority, but to which we are all as lawyers indebted". This was a small joke because in those days a text book could not be authoritative until its author was dead (as I have heard, since otherwise the author might well change his or her mind). But Mr. Geoffrey P. Langworthy, Esq., the barrister who reported the case much more rapidly for the Law Times, did not get the joke and so you can find Pollock's book described by Lord Wright at 154 L.T. 531, 533 as: "a work, unfortunately not a work of authority, but to which we are all as lawyers indebted".

Those were the days.

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