From Civil Litigation

Testing for Legal Ethics and Efficacy: You take the test

Recently, a colleague asked me for an example of a bar exam question that tests the candidate’s judgment between being an effective lawyer and being an ethical one.  It has been long since I’ve prepared such a question, so here is a rusty stab at it: Astrid is a first-year lawyer hired recently by R. U. Hurt LLP, an injury law firm with a reputation for obtaining high settlements through zealous trial advocacy.  She is excited because her senior partner Jay Z. has introduced her to his client Brian, who had suffered a bad whiplash injury in a car accident with…

A Science Manual for Canadian Judges. Who knew we all had to read it?

This summer, while researching for a paper on the Canadian law of causation in the age of torts committed in cyberspace, I re-read the Science Manual for Canadian Judges (Manual).  A 2013 project of the Canadian National Judicial Institute, the Manual was intended to fill a much-needed lacuna in our legal system.  Most lawyers are awful scientists.  So the publication received little fanfare and I don’t know many who have read it. Judges are appointed from a pool of senior lawyers.  It stands to reason that most judges possess a poor grasp of scientific principles.  The demographic fact that the last time most…

Why did the Federal Court issue a media statement regarding Justice Robin Camp?

In a media statement released on November 9, the Federal Court of Canada commented on the decision of the Canadian Judicial Council (CJC) to review the conduct of Justice Robin Camp while sitting as an Alberta Provincial Court Judge.  As widely reported, Judge Camp conducted the trial following a widely discredited understanding of sexual assault which flew in the face of Canadian law.  His comments, moreover, revealed a dismissive bias against complainants which most Canadians would find offensive.  The judgment of the Court of Appeal of Alberta, in ordering a new trial, was terse in its disapproval of every aspect of…

In search of an evidence-based test for judicial bias

The Canadian principle of judicial bias has remained static for the four decades since the Supreme Court of Canada decision in Committee for Justice v. The National Energy Board.  The Supreme Court’s description of bias is rooted in the 20th-century jurist’s “reasonable man” mythos and emergent mid-century theories about the mind: … the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. … Would he think that it is more likely than not the Decision maker, whether consciously or unconsciously, would not decide…

Bénigne Gagneraux: Den blinde Oidipus anbefaller sin familj åt gudarna.
NM 828

Drama and Irony in a Canadian Courtroom?

With the nation riveted to news reports from a fraud, breach of trust and bribery trial in an Ottawa courtroom, Canada reaches a milestone in its legal history.  Behold, Canadians as mass spectators of our justice system “get” the role of dramatic irony, the narrative device used by playwrights to exploit the discrepancy between audience knowledge…

Syllogism-Set-Diagrams

Getting to know your inner ejusdem generis

With increasing frequency, one reads arguments by lawyers arguing their clients have a “strong” case or defence based on an interpretation of a contractual or statutory provision is so wrong, it is enough to make one weep.  Beyond the common complaint about the literacy of lawyers in their everyday correspondence or speech, the inexcusable lack of legal…

Pleading the Blues in Franglais, before Ontario Courts

It took a week, but the court finally accepted their own prescribed form. Last week, I launched a motion on behalf of a francophone client. The bilingual registrar at the court house refused to accept the Notice of Motion because it did not employ a literal translation of the English text of the rule and court form. When my court clerk relayed my advice that the Notice employed the French version of the Ontario Rules of Civil Procedure, as well as the corresponding court form, the registrar still rejected it. Only after arming the clerk with the form from the Attorney General’s own website,…

What if … counsel had adduced better evidence? Deguise v. Montminy showed us the ‘What if’

Last July, in Deguise v. Montminy, 2014 QCCS 2672 the Québec Superior Court had occasion to revisit these issues from in Alie v. Bertrand & Frere Construction Co. Ltd., 2002 CanLII 31835, applying the Ontario Court of Appeal decision in that 2002 case to civil law concepts relating to allocation of responsibility among insurers in complex construction and property damage cases.  Many of the rulings in the decision were specific to Québec civil law. In one aspect, however, the case provided an opportunity to test the writer’s hypothesis that the Alie court called on parties and counsel to present expert…

Abolition of the 5% PJI rule in MVA cases, prospective or retroactive?

In the past weeks, have received numerous inquiries and feedback from the bar and the bench on my Gilbertson Davis LLP litigation blog post on s. 258.3(8.1) of the Insurance Act, regarding the abolition of the special 5% rule on prejudgment interest in motor vehicle tort actions.  Many colleagues in the civil defence bar have told me they have printed it out and used it as leverage at mediations and pretrial conferences.  The plaintiff bar has, as expected, argued the opposite, but the argument against retroactivity fails because the 5% rule has always been arbitrary.  It cannot be argued that 5% is…

AlbersA21

ABCD’s of Litigation Prevention

No one, apart from litigation lawyers and patent trolls, likes litigation.  Or derives much happiness from it.  Then why do we offer ourselves to the public as litigation lawyers?  It is escape from litigation that our clients want, and these days we offer the escape only after costly proceedings and discovery.  What, then, if we started…