"Cranky judges lash out"
Frustration grows in courts as the backlog, more intervenors, questionable
merits of some cases take their toll
By Anne Marie Owens, Saturday, August 03, 2002
* PHOTO * National Post
Ontario Court Judge Eleanor Schnall says media lawyers fighting a sweeping
publication ban were "wasting valuable court time" in a high-profile
Her breeder calls her Jewel. Her owners call her Ladybug. To the Court of
Queen's Bench of Alberta, however, she is nothing more than a monumental
A case over the fate of a Rottweiler puppy, so much
in dispute that the two parties cannot even agree on the canine's name, elicited
a harsh warning from a judicial official, who lambasted the litigants for
wasting the court's valuable time.
"Lawsuits are not sporting events," Master
Michael Funduk, an Edmonton justice official, said in his judgment last month.
"It is not the court's function to fill the lacuna in people's lives. That
is what movie theatres are for.
"So far, the battle over a $250 dog has engaged
one Provincial Court judge, one Master and three Queen's Bench judges. This is
unlikely to be the whole cast of characters."
The case stems from a dispute between Patricia
Moore, who was the operator of Lone Pine Kennels when she sold the puppy she
refers to as Jewel, and Peter and Tanya Tkachyk, a farming couple who bought the
dog they call Ladybug. At issue is whether the Tkachyks allowed the dog to
become pregnant, thereby violating the non-breeding agreement, which is standard
in these kinds of contracts.
But what began, appropriately enough, in small
claims court, has spent the past year winding its way through various levels of
court in Alberta. By the time the case landed before the straight-shooting
Master Funduk last month, it had already been played out before several judges
and other officers of the court.
"The taxpayers of Canada and Alberta pay a lot
of money to provide for the Provincial Court of Alberta and the Court of Queen's
Bench of Alberta," said Master Funduk, whose irritation with the case is
evident throughout his brief judgment.
He repeatedly mentions that this dispute is
"all over a $250 dog paid for by Ms. Tkachyk," a phrase used at least
six times in a three-page judgment. He refused to canvass any of the evidence in
the case, which he refers to dismissively as "the did/didn't evidence of
Ms. Moore and Ms. Tkachyk."
Master Funduk, who has been called "Canada's
Master of Amusing Quotes" on a legal humour Web site, is well-known in
legal circles for his wit and his pithy judgments. He is devastatingly direct
and prefers matter-of-factness to the circuitousness often employed in courtroom
With his blatant disdain for the merits of the dog
case, however, Master Funduk has tapped in to a much broader judicial sentiment.
In courtrooms across Canada, judges are becoming increasingly outspoken about
the tactics and the cases they believe are wasting the time of the court.
In divorce cases, assault trials, tax court and
civil disputes, judges are speaking out about the various aspects that they
perceive to be superfluous to the proceedings.
In St. Thomas, Ont., a judge presiding over a
high-profile spanking case has hurried along the arguments of media lawyers
seeking to soften a sweeping publication ban and has repeatedly criticized them
for "wasting valuable court time."
In Montreal, a long-running and complex Hells Angels
trial has been thrown into disarray after the presiding judge quit when he was
chastised for showing he had little patience with a lawyer he deemed to be
bombastic. Justice Jean-Guy Boilard, a judge noted for his forthright manner,
unleashed a verbal assault on lawyer Gilles Doré, calling his argument
"inflated with rhetoric and hyperbole." When Mr. Doré pleaded his
case, the judge said, "I have a feeling this is going to be painful,"
behaviour legal experts speculate showed too much of his irritability with legal
A judge in Kenora, Ont., was removed from a child
custody case after he remarked that because the litigants did not have enough
money to pay the costs regardless of the outcome, "there is good reason to
believe that the case is a waste of time."
In another recent decision, a Saskatchewan court
ordered a litigant to pay $1,000 for wasting the court's time with a tax refusal
case that had as its main argument forgoing taxes as a way of rejecting the
evils of society: "Given the frivolous, if not vexatious, nature of the
proceedings undertaken ... and the fact that other courts across the country
have been faced with similar useless proceedings at the behest of [his]
agent," the panel of Court of Appeal justices ordered the man to pay costs.
In the carefully circumscribed court world, the fact
that judges are making these kinds of comments on the public record, and not
just nattering behind the scenes, has a judicial impact equivalent to that of
Peter Finch in the movie Network saying he's as mad as hell and not going to
take it any more.
"The issue is really why are the judges
snapping on the public record," said Daphne Dumont, a civil lawyer in
Charlottetown and past president of the Canadian Bar Association.
"It's like when you, as a reporter, get
assigned the third story of the day to work on. It might be a perfectly good
story, but because it's the third one and you're already overworked, you get
kind of negative towards it. In this context, a picky argument just seems like a
waste of time, whereas a judge might have been perfectly happy to listen to
arguments on it for several hours before.
"Judges today are far more aware that there's a
two-month backlog or a 3 1/2-month backlog than they were before. They know that
if they spend another day arguing about that green lamp in the assets dispute,
it just puts the whole thing under even greater strain."
This growing public backlash by judges stems from a
combination of factors, including higher judicial caseloads, a populace that is
more litigious and more knowledgeable about accessing different levels of court,
more intervenors involved in cases and more people opting to represent
themselves in court.
"There's all sorts of reasons that the courts
get frustrated, and one of them is the increased number of
self-represented," Ms. Dumont said. "I just came back from court on a
matter that should have been wrapped up in a couple of minutes and took more
than an hour. I was representing the mother and the father was unrepresented."
She said there is a much greater tendency among
people nowadays to feel as if they can defend themselves in court, and legal aid
cutbacks across the country have left many people with no choice but to handle
their court cases themselves.
"An articulate, educated person who's got the
time can drag an awful lot of people through a lot of levels of court," Ms.
There is also a general sense the courts are under
more pressure, with a growing number of litigants attempting to press their
cases but fewer staff on hand to deal with them.
"The sense of judges that our time is being
wasted may actually be an intellectual appreciation of something that is a
result of an overloaded system," Ms. Dumont said. "It may be judges
responding for the first time to the realization that they aren't satisfying the
She said there are more challengeable areas of law
than existed even a decade ago, with new areas of family law, labour law,
environmental law, corporate fraud and military law, which would never have been
possible to argue before.
The number of parties involved in a case has also
grown in recent years, resulting in many court cases expanding to encompass the
main plaintiff and defendant and, beyond them, all manner of special interest
groups staking a claim as intervenors. Their arguments, which may be critical in
terms of legal precedent or societal stance, are technically peripheral to the
basic arguments of the case, and so are apt to annoy judges who already feel
Even a basic marriage separation case these days is
likely to draw the attention of various women's groups, for example, where there
are issues such as whether the wife helping the husband get his diploma can be a
Another example is a case under way in northern New
Brunswick that is ostensibly about a native man charged with fishing when he
should not have been. Because he was turned down for legal aid (it is a summary
conviction and therefore not serious enough to warrant legal aid), all sorts of
interest groups are now involved, including the province's legal aid authorities
and native groups.
In St. Thomas, Ontario Court Justice Eleanor
Schnall's remarks suggested she regards the media's intervention in the spanking
case as little more than a hindrance to getting justice done. Media lawyers
fought a sweeping publication ban on a case they regard as having serious
implications for how far parents can go in disciplining their children and how
far child protection agencies can go in protecting those who don't believe they
need such care.
The judge has chewed out one media lawyer after
another for obliging her to "sacrifice court time" and for
"hijacking" the proceedings; she has repeatedly expressed her dismay
at having to delay the trial to hear freedom of expression arguments. "I
will not sacrifice any more court time on the media issue," she snapped at
one lawyer. "We're not going to spend any more time listening to media
submissions," she said to another.
The implications of this situation are significant.
In the short term, it may result in more judges being disciplined or getting
their judgments appealed because their brusque remarks about moving things
forward could be construed as bias. In the longer term, however, this
irritability with the smaller things could change the nature of the
precedent-setting law of the future.
Ms. Dumont said the kinds of cases that lawyers are
interested in, the kinds of cases they study in law school, often result from a
relatively minor dispute of fact that spun out into arcane legal arguments over
"There are a lot of these great cases that were
really over something like a £5 debt," she said. "They often spent
three days talking about it. The courts don't seem to have that kind of time any
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