In a hypothetical reality where judges all approach Dworkin's Hercules in abilities and some are, limiting rights of appeal makes sense in principal. But 40 plus years of practice in Canada
has taught me that, in reality, too many judges approach Inspector Clouseau in abilities without his capacity to always stumble on the correct result.
My impression is that the same sort of problems exist elsewhere. There are too many about whom a sufficient ground for appeal is, too, often "this is an appeal from the decision of".
Paraphrasing what Yogi Berra is reputed to have said: Practice too often is different from theory in ways that matter.
The problem is exacerbated by, bluntly put, the situational incompetence of too many practitioners and, seemingly, too many judges. By situational, I mean that these people have the capacity
to do their job properly in the particular case; however, for whatever reason, they did not.
It has to be "situational incompetence" right? If it isn't, the alternatives are even less attractive.
Again, pointing only to Canada, one finds instances where a competent judge at first instance has to say something like this about the competence of counsel in Wilson v. Bobbie, 2006
ABQB 22, 263 DLR (4th) 332 at para. 42: "Since neither counsel cited the binding decisions of the Court of Appeal (or indeed, any authority at all), neither party is entitled to costs of this motion." The first instance
judge cited 38 cases. My recollection is that a few of the cases, but not many, dealt with other issues. The issue wasn't novel. It's well-covered in the appropriate texts, well-known. One of which, as it happened, is written by a name well-known in Alberta
so should have been well-known to Alberta counsel. (No, not now Mr. Justice Brown; rather, Lewis Klar.)
Or an appellate court has to say something like this in R. v. Kusk, 1999 ABCA 49, [1999] 7 WWR 339:
[9] The second reason not to apply the proviso is that many appellate courts have condemned such cross-examination, especially by prosecutors questioning the accused, since at
least 1925. We are not aware of any modern authority allowing it. Yet it keeps happening, as the number of modern decided cases shows. In one province (not Alberta), there are so many appellate decisions condemning the practice, but not ordering a new trial,
that one wonders whether the prosecutors there think that it is a matter of “Do as I say, not as I do.” Maybe that is why they keep asking the forbidden question. The practice should stop at once, and there is an obvious way to stop it.
[10] The third reason is this. Here the Crown prosecutor, instead of checking some law, unrepentantly made this very error the peroration of her address to the jury. It was the
last thing which the jury heard from the lawyers. The jury was invited to convict on this very ground. Nor did the trial judge really do much to cure the suggestion which the prosecutor had twice planted and the trial judge already once blessed. We are
told that the trial was only about two days long, and the facts are simple, yet the jury deliberated about 10-12 hours before convicting. One cannot possibly say with any confidence that this error did not cause the conviction.
[13] To a person untrained in law and evidence, these false trains of reasoning are highly meretricious. Once that poison is injected into his or her brain, there is probably no
antidote. They even lure some with training."
The "some with training" has to be understood to at least include the trial judge.
Or where the appellate court says about a first instance decision that a particular conclusion " fails the reality test". See Authorson v. Canada
(Attorney General) , 2007 ONCA 501 at para 163: "The
motion judge's approach to hindsight fails the reality test. It is inconsistent with the restitutionary principle on which damages are awarded in fiduciary cases. He should not have adopted it."
Or where the appellate court is required to write this about the decision under appeal, as recently happened in Iannetti v Poulain, 2016 NSCA 93 (CanLII) where the Court of Appeal,
no doubt out of consideration for the feelings of the trial judge and counsel, chose to write 94 paragraphs which amount to this: appeal allowed because there was no evidence whatsoever upon which any competent trial judge could have rendered that decision.
As the NSCA implied but did not say, perhaps it might have been the case that that evidence existed. However, the fact was that it was not adduced. The NSCA wrote at para. 89: "Once again this goes to the heart of the
causation issue. If Mr. Poulain was never eligible for [accident] benefits [under his own insurance policy], how could he have suffered any loss as a result of the negligent advice given by Mr. Iannetti [in relation to the claim accident benefits under his
own insurance policy]? He would not have any claim against ... [his own] insurer, nor could he have been prejudiced in his negotiations with the [liability] insurer [of the person alleged to have caused P the injury in respect of which P claimed accident
benefits]." I have added words in the square brackets.
Or, as recently happened in Ontario, somehow, a first instance judge did not become aware of a Supreme Court of Canada decision which was released just a few weeks before the first instance
judge released his decision where something in the SCC decision might have affected either the first instance judge's decision or analysis. For what it's worth, I doubt it but then my views matter even less, now (in Canada) than they ever did. The first instance
decision is Wise v Abbott Laboratories, Limited, 2016 ONSC 7275. The SCC decision is Benhaim v. St‑Germain, 2016 SCC 48.
Or, as still consistently and commonly happens in British Columbia in personal injury actions, some trial judges repeatedly set out their understanding of (at least) the law on factual causation in terms which might or might not have been
British Columbia law prior to 2007 but has not been ever since, not the least because the Supreme Court of Canada ruled otherwise, at least twice; coincidentally, or, ironically if you will, in appeals form decisions of the British Columbia Court of Appeal.
- It seems to me that we should assume the trial judges involved do so because they believe (with good reason) that the BCCA isn't going to allow an appeal from the result, for whatever reason, with enough of a difference in the award to make it worthwhile
for the defendant's insurer to appeal.
In at least some of the instances of described above, it's not clear, on the facts, whether the inadequate, mistaken, conduct of counsel or the judge was intentional or merely an
"honest" mistaken. In some cases, one has to wonder how the trial judge could have been honestly mistaken, if one assumes the trial judge was current on the law and impartial on the facts, if one assumes the judge was otherwise competent. By "honest", I don't
mean "dishonest" in the sense of being bribed or intentionally deciding an issue, or the case, in a manner the judge knew was contrary to the applicable law. I mean a mistake which, on any reasonable view of the facts, a competent judge ought not to have made;
an "honest mistake" for which the Oxford Online dictionary provides this definition: "Free of deceit; truthful and sincere".
In a lecture here, late last year to a class of Oxford 1st year MPhil, DPhil, BCL, MJur, and at least one MSt, candidates, Les Green remarked that a major need in developing countries (to
increase the chances of a worthwhile judicial system) is the capacity to pay judges enough to reduce their inclination to take bribes because they need the money to survive. We now have what amounts to the opposite of that problem in Canada. I've sardonically
described that problem in versions of this statement: "a failing law practice isn't reason to become a judge".
My point? The amount by which the salary of the average judge in Canada exceeds the income of many practitioners - probably the average practitioner when one removes the top segment - makes
being a judge attractive by reason of the salary alone.
I am not saying judges are underpaid. Many are woefully underpaid, even at the amount that they are paid. Some are woefully overpaid at any level.
I apologize for going on a bit too long. It's rather a relief to be able to write what I've written, explicitly, and not have to look over my shoulder wondering which of my clients' cases
I've damaged in a way that is not "fixable" so long as I remain on the file; or my colleagues' cases just by their association with me.
Somebody once asked me why I stopped writing about law for about 2 decades. Some of you have heard my answer but it's worth repeating, I think. I make it only in respect of my experience
in Canada. If, in the academic realm, it's "publish OR perish", in the practitioners' world, where one has institutional clients one doesn't control and one works in a firm with other lawyers, it's "publish in any area of work that one's firm handles AND perish",
unless all that one publishes is the equivalent of a hagiography. No thanks.
I thought about changing the subject of this message to "Canada Supreme Court Greatest Hits
And Misses in Contract" but I'm sure that that's what Matt has in mind, in any event.
Cheers,
David Cheifetz
(retired barrister etc)
From: David McLauchlan [David.McLauchlan@vuw.ac.nz]
Sent: 18 January 2017 20:57
To: Gerard McMeel
Cc: Adam Kramer; Harrington Matthew P.; obligations@uwo.ca
Subject: Re: Canada Supreme Court Greatest Hits in Contract
There has to be a right of appeal in these cases. Very often large sums are at stake and I have read too many cases where the trial judge had no idea and got it completely wrong. Not that appellate courts are always wiser, as Gerard points
out.
David McLauchlan
It is a shame that approach was not adopted in Arnold v Britton where the Cardiff County Court clearly got the right answer – only to be reversed by three (count ‘em) unedifying
layers of appeal.
Gerard McMeel
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I like
Sattva Capital Corporation v Creston Moly Corporation et al [2014] 2 SCR 633.
The present English approach of treating interpretation as a pure question of law and so permitting appeals from interpretation decisions as a matter of course is wrong and
unjust.
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-----Original Message-----
From: Jason W Neyers [mailto:jneyers@uwo.ca]
Sent: 15 January 2017 01:16
To: Harrington Matthew P.; obligations@uwo.ca
Subject: RE: Canada Supreme Court Greatest Hits in Contract
How about the tendering cases developing the Contract A/Contract B analysis.
-----Original Message-----
Sent: Friday, January 13, 2017 11:37 AM
Subject: Canada Supreme Court Greatest Hits in Contract
I’m doing a short piece on the Canada Supreme Court and the law of contract with a bit of an historical focus. I was wondering if you might be willing to share with me what
you consider the court’s most significant contracts cases --- over the past 150 years ---- even if the case has been overruled.
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