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No Expectation of Originality: SCC Explores the Governing Principles Behind the Long Tradition of Judicial Copying
A trial judge who incorporated large portions of the plaintiff's submissions in his written reasons did not displace the presumption of judicial integrity and impartiality so as to justify overturning the decision said the court in Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30. "While it is desirable that judges express their conclusions in their own words, incorporating substantial amounts of material from submissions or other legal sources into reasons for judgment does not without more permit the decision to be set aside. Only if the incorporation is such that a reasonable person would conclude that the judge did not put her mind to the issues and decide them independently and impartially as she was sworn to do, can the judgment be set aside." (para. 1) In this case, the judge had clearly put his mind to the issues and the court found that the judgment should not have been set aside for judicial copying. However, the court went on to find several errors in the trial judge's reasoning and overturned all but one finding of liability. These articles discuss the decision: |
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Standard of Review for Causation: SCC
The Supreme Court restored the trial judge's finding of liability in Ediger v. Johnston, 2013 SCC 18, an obstetrical malpractice case in which causation was the central issue. The trial judge found that the obstetrician's failed mid-forceps attempt caused a cord obstruction which resulted in severe brain damage when surgical back-up was not immediately available. The BCCA disagreed with both these conclusions and held that the plaintiff had failed to establish causation. The Supreme Court stressed that causation is a factual issue and that a trial decision should stand unless the judge made a palpable and overriding error. In this case, said the court, "...the trial judge did not err by finding that (the doctor's) failure to have surgical back-up immediately available before attempting the mid-level forceps procedure caused (the plaintiff's) injury. It follows that there is no basis for interfering with the finding of liability made by the trial judge." |
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Security for Costs Order Upheld: MBQB
In Ataliotis v. The Assiniboine Credit Union Limited, 2013 MBQB 112, the court upheld the master's order for security for costs against an out-of-province plaintiff suing to recover the $1,520,00 he lost following the collapse of a cheque kiting scheme. The defendant bank, which lost in excess of $4,800,000 due to the fraud, argued that the plaintiff was either a co-conspirator in the kiting scheme or wilfully blind to it and issued a counterclaim for its losses. Considering the likelihood of high costs in the complicated case; the blemish on the plaintiff's cloak of innocence; the fact that he does not reside in Manitoba or a reciprocating state; and his failure to put forward evidence that he could not proceed if ordered to put up security for costs, the court upheld the order.
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Timing of Motion to Remove Counsel "A Concern": MBQB
The court refused to grant the defendant's motion to remove a law firm as counsel for the plaintiffs in Matic et al. v. Waldner et al., 2013 MBQB 75. The motion ought to have been brought at the outset of the two-year-old proceedings, said the court, not several months before the trial. In addition, the court found that the involvement of the lawyers as potential investors was peripheral to the case and it was unlikely they or others from their firm would be required to testify. |
Jurisdiction Simpliciter and Forum Conveniens: MBQB
The court refused to set aside a statement of claim alleging breach of fiduciary duty and contractual obligations by an Ontario-based employee of a Manitoba company in Pavilion Financial Corporation et al v. Highview Financial Holdings Inc. et al, 2013 MBQB 95. The employee argued that the Manitoba Court of Queen's Bench did not have jurisdiction simpliciter and/or that Manitoba was not the forum conveniens for the hearing. The court disagreed, finding there were a number of factors providing for a real and substantial connection to Manitoba, including: the fact that the second contract, although signed by the defendant in Ontario, was with a Manitoba company; the fact that both employment contracts stipulated that Manitoba law applied; and the fact that disputes were to be settled in Winnipeg pursuant to Manitoba's arbitration legislation. The court also found that, although there were arguments favouring both jurisdictions, Ontario was not a more convenient forum than Manitoba. |
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Practice Directions: MBQB
The Court of Queen's Bench issued two new practice directions on April 24, 2013, both of which came into effect immediately. In Orders the court requires lawyers to file orders within 30 days of pronouncement, and in Adjournments the court reminds counsel that they need to inform the court at the earliest possible date if a matter will not be proceeding.
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Recent Publications
The evolution of expert evidence - this Lawyers Weekly article summarizes the key findings of a recent study on emerging trends and practices concerning the use of expert evidence in common law jurisdictions around the world. Adversarial bias and cost were the two primary concerns common to all jurisdictions and the report discusses how these issues are being addressed. The full report is available for download on the Canadian Institute of Chartered Business Valuators website.
Selecting expert witnesses - this Lexpert article presents a different take on expert witnesses, from the point of view of in-house counsel.
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Spring CPD: LSM
Effective time management is a skill both lawyers and support staff strive to master and Frank Sanitate is an expert on the topic. Register now to attend either Time Mastery for Lawyers or Time Mastery for Support Staff, two full-day workshops taking place at the Law Society on June 11 and 12, 2013.
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Save the Date
Eugene Meehan, Q.C. is returning for another informative session on Strategic Legal Writing on September 5, 2013, from 1:00 to 4:00 p.m. at the Law Society classroom. He will be joined by The Honourable Justice Laurie Allen, who will provide a judge's perspective on what works and what doesn't, and Garth Smorang, Q.C., who will discuss how to write in a practical, strategic, and focused way.
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