National Post Saturday

"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 spanking case.

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 time-waster.

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 banter.

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 time-wasting.

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. Dumont said.

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 public."

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 under pressure.

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 reclaimed asset.

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 several days.

"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 more."