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:

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)