Given the recent retirement of U.S. Supreme Court justice David Souter, we will soon be treated to the spectacle that is the confirmation process for the proposed nominee. Anyone recalling the hearings for Robert Bork or Clarence Thomas will know that the process is ripe for either reform or satire. As to the latter, author Christopher Buckley has a wonderful send up of the Court in his novel “Supreme Courtship” (2008: Hatchett Book Group U.S.A. Inc., New York).

The premise of the novel is that, after having had two distinguished nominees with unblemished records rejected by the Senate, one for having written a negative review of To Kill a Mockingbird when the nominee was 12 years old, the President nominates a judge and host of the popular television show, Courtroom 6, for the Supreme Court post. In her preparation for the hearings, the sassy judge gets ready for the inevitable hostile personal questions:

“Look here Senator. You got five thousand FBI agents out there going through my garbage and waterboarding everyone I ever talked to, starting with the ob-gyn who slapped my butt on my way out of the womb. Do you really think I’d put myself through all this if I had a whole catacomb of skeletons doing the cha-cha in my closet?”

The ideological division on the Court also comes in for scrutiny:

“Half the justices had proved to be disappointments to the presidents who appointed them, the conservatives voting liberal and the liberals voting conservative and the middle-of-the-roaders swerving like drunk drivers from right to left. Nine times out of ten, the Court voted 5-4… ‘It is at this point unclear’ the Times noted ‘whether this Court could agree on the law of gravity.’”

Even the footnotes are funny:

“There were at least some advantages to being ‘the most powerful man in the country,’ even if you couldn’t seize your wife’s assets and have her submitted to peine forte et dure.”*

*French term for being slowly pressed to death. Used today to describe waiting for the cable company to arrive.”

On May 14, 2009, the Court of Appeal for Ontario released a decision in a case that I was involved in on behalf of the plaintiffs. The decision, Silvestri v. Hardy, 2009 ONCA 400, concerned an action brought in Ontario as result of a car accident in Michigan. The plaintiff resides in Hamilton and has sought medical attention in Ontario due to the injuries she sustained in the accident. The defendant claims that the accident was caused by an unidentified driver who he was seeking to avoid when he collided with the plaintiff. Given this position, the plaintiff was required to take action against her own insurer pursuant to the unidentified motorist provisions in the insurance policy. This part of the claim must proceed in Ontario.

The question at issue on the appeal was whether the action should be heard in the Ontario courts or whether Michigan was the more appropriate forum for the resolution of the dispute. A Superior Court judge had ruled that the action should be heard in Michigan, as there were a number of witnesses to the accident who are resident there, and Michigan law would govern the action. The Court of Appeal reversed the decision and held that the action should proceed in Ontario.

The Court noted that the number of witnesses for each side were evenly divided, but that if the action were tried in Michigan there would be the possibility of inconsistent verdicts given that the claim by the plaintiff against her own insurer would have to proceed in Ontario. As a result, the overriding goals of efficiency and justice which underlie the system of conflicts of law mandated that the action proceed in Ontario rather than Michigan.

While the Court did not have to consider the issue, it can be said that statutory provisions in Ontario make the forum of the dispute of lesser importance in car accident cases that occur in North America. Section 243(1) of the Insurance Act provides that automobile insurance provided for under the Act applies to the use or operation of a vehicle in Canada or the United States. Section 252(1) of the Act provides that in the case of liability arising out of the use or operation of a vehicle in Canada or the United States, the insurer is liable up to the minimum limits prescribed for in that province, territory or jurisdiction if those limits are higher than the limits in the policy, and the insured appoints the insurer to appear and defend an action in any province or territory of Canada or any jurisdiction in the United States. Section 57(1) of the Statutory Accident Benefits Schedule provides that the insurer is required to pay accident benefits properly payable if the accident occurred in another province or territory of Canada or a jurisdiction in the United States.

In light of these provisions, it can readily be seen that, insofar as the rights and obligations of the insured person and the insurer are concerned, there is little difference if a car accident occurs in Ontario, Canada or Ontario, California.

As has been widely reported, the U.S. Supreme Court yesterday agreed to hear Conrad Black and his co-defendants Jack Boultbee and Mark Kipnis’s appeals of their convictions in a Chicago court. The Petition for Certiorari, what we would call an Application for Leave to Appeal, can be viewed at Scotus Blog and is worth looking at for insight into effectively reaching an audience by written legal argument. In particular, the brief points up the importance of an effective introductory statement which tells the reader the precise issue to be addressed and proceeds to recite the facts so that the justice of the case is seen to be in your client’s favour. After citing the leading decision on point and subsequent statutory amendment, the brief begins:

“Twenty years later, the courts of appeals are hopelessly divided on the application of Section 1346 to purely private conduct. In this case, the Seventh Circuit disagreed with at least five other circuits and held that Section 1346 may be applied in a purely private setting irrespective of whether the defendant’s conduct risked any foreseeable economic harm to the putative victim. In the alternative, the Seventh Circuit ruled that the defendants forfeited their objection to the improper instructions by opposing the government’s bid to have the jury return a ‘special verdict,’ a procedure not contemplated by the criminal rules and universally disfavoured by other circuits as prejudicial to a defendant’s Sixth Amendment rights.”

Later on in the brief, the author returned to the theme, an important one in an application for permission to appeal to a high court, of clarifying the law and resolving disputed legal issues:

“Nowhere is the need for clarity and restraint in the application of Section 1346 greater than where, as here, the government is prosecuting private conduct that has no connection to the type of honest services fraud that prompted the 1988 expansion of the mail fraud statute in the first place – public corruption by government servants.”

Overall, the brief makes a persuasive case that flawed jury instructions may have caused the jury to render an unsafe conviction.

The conduct of a trial is not for the faint of heart. It is stressful, time consuming work. In its March 2009 cover story entitled “7 over 70, Lions of the Trial Bar”, the American Bar Association Journal profiled seven of the most distinguished trial lawyers in the United States, all of them over 70 years old. Herewith are some of the gems.

Bernard Nussbaum, New York City, New York: “Nussbaum says good settlements hinge on the opponent realizing that you are not afraid to take the case to trial, as well as your own client recognizing the risks that come with a trial.”

“At the end of the day, we convinced the judge that we were the good guys and that they were the bad guys. Most cases, despite all the technicalities, come down to that; Did your client act in good faith or bad faith.”

Joe Jamail, Houston,Texas: “Today’s law schools teach students how not to get emotionally involved in their cases. That’s bullshit. If you are not emotionally involved, your client is not getting your best effort.”

James Neal, Nashville, Tennessee: “They didn’t understand how much I hate losing. Yeah, I love winning. But I hate losing even more. Just the thought of losing makes my body shrink from 5’8” to 5’6”.”

“[Jimmy] Hoffa was even a tough old bird on the witness stand. He had the same answer to every question I asked: ‘To the best of my recollection, I do not recollect.’”

Fred Bartlit, Chicago, Illinois: “Jurors are like us. They hate not understanding things. They appreciate and trust the people – be it lawyers or witnesses – who help them better understand the facts and the meaning of the case.”

“I tell our young lawyers the one thing we know jurors do is evaluate everyone in court, and they don’t trust phonies. So always be yourself.”

Bobby Lee Cook, Summerville, Georgia (82 years old): “I’m having the best and most productive year of my career. I enjoy waking up every morning and kicking somebody in the ass that needs it.”

“The law practice has changed so much. The law is viewed as a business these days and not as a noble profession. Law firms are operated as banks. I know partners at big law firms who have never tried a case to a jury. I didn’t become a lawyer to get rich, but I’m doing OK.”

“If you can railroad a bad man to prison, you can railroad a good man. That’s why we should always vigorously fight for the constitutional rights of even those who are most despised in our communities.”

James Brosnahan, San Francisco, California: “Brosnahan turned 75 in January, but he has no plans to slow down. He has four jury trials and two non-jury trials already scheduled for this year.”

“Brosnahan says his decision to try all kinds of cases – civil and criminal – has allowed him and trial lawyers of his generation to gain the courtroom experiences that following generations have not had.”

Richard “Racehorse” Haynes, Houston, Texas: “For Haynes, the courtroom is always a place for theatre. He re-enacts crime scenes. He mimics opposing counsel. He shouts, screams and dances. He waves around murder weapons – be they guns or cattle prods.”

“There was a trial in the 1970’s in which the prosecutor refused to call a witness because he knew Haynes would tear him apart on cross-examination. Furious, Haynes used his closing argument to cross-examine an empty witness chair, asking the same probing questions he would have asked the absentee witness. The stunt was effective; again, the jury acquitted on all counts.”

The Globe & Mail is reporting today on a case of alleged corruption involving participants in the Ontario justice system. The case started out as an investigation into fraud at Bombardier Inc. and has since expanded to include a member of the Ontario Provincial Police and a Toronto Crown Prosecutor. Included among the charges against the police officer are allegations that he used his position as case management officer in the Toronto criminal courts to “gain corrupt advantage for his associates charged with offences.”

The details are sketchy at this point but include allegations that the officer assisted an accused person avoid prosecution in Ontario and assisted another to obstruct the course of justice in a sexual assault prosecution. The Crown Attorney, although not charged with an offence, is named as “an unindicted co-conspirator.” None of the allegations have been proven, however they are sufficiently serious that the Attorney General has appointed an out of province lawyer, Richard Peck of Vancouver, to prosecute the case.

Corruption in the Ontario justice system is exceedingly rare, but any concern of this kind must be treated with the utmost seriousness. Maintaining the integrity of the justice system is of paramount importance.

In an influential decision from 1993 known as the Ikarian Reefer, the English Queens Bench held that expert witnesses owe their primary duty to the Court instead of the party who may have retained their services. In the decision, the Court made the following important points:

(1) Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form and content by the exigencies of litigation;
(2) An expert witness should provide independent assistance to the Court by way of objective, unbiased opinion in relation to matters within his or her expertise. An expert should never assume the role of an advocate;
(3) An expert witness should state the facts or assumptions on which the opinion is based, and should not omit to consider facts which may detract from the opinion.

On January 1, 2010, as part of an ambitious attempt to streamline the civil litigation system in Ontario, these obligations will be given effect in the Rules of Civil Procedure. The rules will provide that the duty of an expert witness is to provide fair, objective, non-partisan opinion evidence related only to matters within their area of expertise, and that this duty prevails over any other obligation of the expert witness. A certificate confirming that these duties are understood will have to be signed by the expert witness.

It is to be hoped that these welcome amendments will result in fewer “battles of the experts” to which our litigation system has become accustomed. In cases where such assistance is needed, the Courts rely heavily on expert witnesses to provide opinions on matters outside the expertise of the parties to the dispute. If those opinions are tainted by bias, there can be a failure of justice.

There is an interesting decision out today from the Court of Appeal for Ontario on the technical but important issue of the jurisdiction of the court. The decision, Mignacca v. Merck Frost Canada Ltd., 2009 ONCA 393, involves a class action lawsuit over the drug Vioxx. An Ontario Superior Court judge had certified the case as a class action. Under the Ontario Class Proceedings Act, section 30(2), appeal of an order certifying a proceeding as a class proceeding can be brought to the Divisional Court with leave of a Superior Court judge. Merck Frost brought such a motion but was refused leave to appeal in November 2008. In the meantime, on March 30, 2009, an earlier certification decision in Saskatchewan was set aside by the Saskatchewan Court of Appeal. Relying on that decision, Merck Frost sought an extension of time to seek leave to appeal to the Court of Appeal from the decision of the Superior Court judge denying leave to appeal. The motion was heard by a single judge in Chambers, Mr. Justice Paul Rouleau.

Mr. Justice Rouleau decided that an extension of time for leave to appeal was not required, since the decision of the Superior Court judge refusing leave to appeal could be construed as a final order. Under section 6(1)(b) of the Courts of Justice Act, final orders of a Superior Court judge can be appealed to the Court of Appeal without leave. While not finally deciding the issue, Justice Rouleau stated that, in the event Merck Frost considered the order to be a final one, they were given a ten day extension of time to appeal. The Plaintiffs could then seek to quash the appeal by a motion brought before a panel of the Court of Appeal.

In my view, there is considerable doubt the legislature intended that a refusal of leave to appeal the granting of a certification order could be appealed directly to the Court of Appeal. This would only serve to encourage further review of certification orders, which the legislature intended would be screened out by way of the leave to appeal procedure to the Divisional Court. Given that Justice Rouleau has suggested the Plaintiffs can seek to quash the appeal which will undoubtedly be brought by Merck Frost, we have clearly not heard the last of this issue.

It is not uncommon for an accused person convicted of a criminal offence to blame their lawyer for the outcome. While courts look upon such complaints with scepticism, the reality is that mistakes can happen and inadequate representation can cause a miscarriage of justice. The Court of Appeal for Ontario has recognized the importance of effective legal representation to a just outcome in a criminal case, saying “We place our trust in the adversarial process to determine the truth of criminal allegations. The adversarial process operates on the premise that the truth of a criminal allegation is best determined by partisan advocacy on both sides of the case.”

When an issue of ineffective assistance of counsel is raised on appeal, the justice system must find a way to fairly deal with the complaint. In May 2000, the Court of Appeal, with the assistance of representatives from the Criminal Lawyers Association, the Department of Justice and the Ministry of the Attorney General, enacted a Protocol for the presentation of appeals where there is an allegation of ineffective assistance of counsel.

This important effort has a number of hallmarks: (a) before making a claim of ineffective assistance of counsel, the appeal lawyer must satisfy him or herself by appropriate inquiry, that there is a factual basis for the allegation apart from the instructions of the client; (b) the appeal lawyer must provide trial counsel with the opportunity to respond to the allegation; (c) trial counsel is obliged to provide their entire file to the appeal lawyer; (d) the appeal is case managed by a judge of the Court of Appeal; (e) the Crown Attorney is entitled to review the file of trial counsel, except for those portions over which solicitor and client privilege is claimed; (f) if solicitor and client privilege is claimed, the appeal lawyer must provide an inventory of such documents to the Crown Attorney; (g) disputes over privilege will be decided by the case management judge; (h) either party can compel trial counsel to attend for examination on the issues involved in the appeal.

This creative Protocol ensures that the interests of all parties to the appeal are adequately protected. In the end however, the burden of proof is on the accused person to demonstrate to the appellate Court that ineffective assistance of trial counsel caused a miscarriage of justice.

It is a fundamental aspect of our civil justice system that parties to a lawsuit are required to make available to their opponent any relevant document relating to the matters in issue in the action. It does not matter if the document helps or hurts the cause, it must be produced. Lawyers, and particularly insurance lawyers defending personal injury claims, are waking up to the relevance of social media sites such as Facebook. The argument goes like this: “You Mr. or Ms. Plaintiff are claiming that injuries suffered in the accident have interfered with your quality of life. We would like to see how you portray yourself in your communication with friends on Facebook.”

In a thoughtful decision, Justice David Brown of the Ontario Superior Court of Justice had occasion to consider this argument in a recent case called Leduc v. Roman, 2009 CanLII 6838. Mr. Leduc had been involved in a car accident in February 2004. He brought an action claiming that his enjoyment of life and ability to engage in sports had been adversely affected. The defence lawyer conducted a search and learned that Mr. Leduc maintained a Facebook account. The profile available to the public showed only his name and picture. Access to the site was restricted to “friends” of Mr. Leduc. The defence brought a motion for production of information on the site. A Master of the Superior Court dismissed the motion, characterizing it as a “fishing expedition.”

Justice Brown heard the resulting appeal. He started by outlining some basic facts. Facebook is a social media website with 70 million users as of June 2008. More than 14 million photos are uploaded daily. Users can create a wall on which friends share messages with each other. Justice Brown quoted from an earlier decision on the important issue of privacy: “I have concluded that any invasion of privacy is minimal and is outweighed by the defendant’s need to have the photographs in order to assess the claim. The plaintiff cannot have a serious expectation of privacy given that 366 people have been granted access to the private site.” Justice Brown went on to articulate a rule for future cases: “Given the pervasive use of Facebook and the large volume of photographs typically posted on Facebook sites, it is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on the party’s Facebook profile may be relevant to allegations made in the pleadings.”

Mr. Leduc was ordered to deliver a further affidavit of documents and the defence lawyer was permitted to cross-examine on the affidavit so as to discover precisely which of the contents on the private site were relevant to the issues in the action. Justice Brown concluded by making the following observation: “To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”

With these observations in hand, it seems to me that parties to a lawsuit should indeed now beware of Facebook.

Stress at work is a serious problem. Google bad bosses and see what comes up. It is not well known however that undue stress caused by inappropriate conduct of the employer can lead to a constructive termination of employment. In other words, the employee may be forced to leave work for the sake of their health but can still bring action against the employer for wrongful termination.

What are the types of abusive conduct which can lead to a constructive dismissal? It has been well stated by a judge in Alberta that it is a “fundamental term of any employment relationship that the employer will treat the employee with civility, decency, respect and dignity.” Clearly, these are matters of degree and each case must be looked at its own facts. It can fairly be said however that conduct such as harassment, repeated yelling and the excessive use of foul language can pass the test.

Employers have a duty not to create a hostile work environment. For many employees faced with this conduct, the stress reaches the point that continued employment becomes intolerable. In such cases, the Courts are there to grant the appropriate relief.