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June 2, 2014

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Judge's actions in Forest Hill neighbour dispute debated By yamri Taddese Law Times n the wake of a now-infamous ruling about quarrelling For- est Hill neighbours, lawyers are debating whether the judge should have resolved the matter instead of dismissing it in a deci- sion full of biting comments. Superior Court Justice Edward Morgan's ruling dealing with wealthy residents in the "tony" Toronto neighbourhood became fodder for legal comedy after he found the parties needed "a stern kindergarten teacher" rather than a day in court. But Toronto lawyer Lee Aka- zaki isn't laughing. He says that in mocking the plaintiffs for bringing the action, the judge neglected his duty to "diffuse tension between citizens" no matter how petty their claims may be. Morgan's decision, which called the case "a gem of a lawsuit," fo- cused on poking fun at the parties and failed to even describe the kind of relief the plaintiffs were seeking, Akazaki notes. "From the perspective of judi- cial duty, when I read the case I found it less than satisfactory in terms of telling me what the case was about and why it was decided in that way," he says. "As a member of the public, it would have been good to be told what the plaintiffs were seeking because it's only when you have that information that you can determine whether the decision to dismiss was justified." The decision says the plaintiffs, John and Paris Morland-Jones, pur- sued a civil lawsuit after the parties exchanged lawyer letters to no avail. To Akazaki, that suggests the judge should have granted some sort of re- lief in the form of an injunction. "What if you can't get any relief here? What does that mean? Does that mean that I have to go across the street and punch somebody?" he asks. Lots of cases involve difficult par- ties, but that doesn't mean they don't deserve relief, according to Akazaki, who adds he found it "disturbing" that the judge's decision suggests the litigants face a higher standard of Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation )BSECPVOEȕ1VCMJTIFE'FCSVBSZFBDIZFBS 0OTVCTDSJQUJPOȕ- 0OFUJNFQVSDIBTFȕ- .VMUJQMFDPQZEJTDPVOUTBWBJMBCMF 1SJDFTTVCKFDUUPDIBOHFXJUIPVUOPUJDF]UPBQQMJDBCMFUBYFTBOETIJQQJOHIBOEMJOH CANADIAN LAW LIST 2014 :063*/45"/5$0//&$5*0/50$"/"%"Ȏ4-&("-/&5803, ȕ BOVQUPEBUFBMQIBCFUJDBMMJTUJOH ȕ DPOUBDUJOGPSNBUJPO ȕ MFHBMBOEHPWFSONFOUDPOUBDUJOGPSNBUJPO .03&5)"/"1)0/�, CLL-Dir_LT_Feb10_14.indd 1 14-01-31 12:11 PM Prof troubled by SCC nomination process Current approach plagued by major 'transparency deficit' By yamri Taddese Law Times s critics continue to pelt Prime Minister Stephen Harper with questions about Supreme Court ap- pointments, a University of Ottawa professor has published a report that says a major "transparency deficit" plagues the process for nominating judges. Prof. Adam Dodek says the public now knows less about how the government appoints Su- preme Court judges than it did 10 years ago even though it revamped the process in 2002 in an ef- fort at allowing for more accountability. But the Supreme Court advisory commit- tees, introduced to advise the government on appropriate judicial candidates, are "completely shrouded in secrecy," says Dodek. The most troubling transparency deficit, Dodek says, is the lack of information about the very basis on which the committees select one candidate over another. "All we really know is the members of the committee; that's really all the information we have," he says. "The members of the committee are bound by a confidentiality agreement and apparently, the people that they consult with are also bound by secrecy or by a confidentiality agreement." At times, the prime minister or justice min- ister provides a sentence or two about the level of support on the committee for a nominee. In other instances, as was the case with Justice Marc Nadon's failed appointment, the prime minister is silent on how the selection committee made its recommendations, Dodek notes. "What are we to make of that silence? I don't know." Historically, there has been a great deal of confidence that there would be no attempt to appoint judges who support political plat- forms, says Toronto lawyer Bill Trudell, who acknowledges some forms of patronage may nevertheless have existed. "What's happened here is that we had a system that wasn't perfect but it was built on trust. What's happened is that because of the way the govern- ment has interfered, or attempted to, the trust has been frayed and eroded. That's sad. That's un- known in our country and totally unacceptable." Trudell, who has sat on an appointment com- mittee for judges in Ontario, says the federal gov- ernment should adopt a similar apolitical proto- col where it chooses a judge from a list given to it by the selection committee as opposed to the other way around. "That way, the government had nothing to do with the application process, the screening pro- cess, the interview process, and the recommen- dations," says Trudell. "Maybe we need to consider this [process] because the prime minister has poisoned the chalice." Currently, the Supreme Court selection REGULATORY DIVIDE Should solicitors have separate body? P4 MANDATORY MINIMUMS Lawyers' defence criticized P7 FOCUS ON Internet/ E-Commerce Law P8 Government interference in judicial appointments has undermined public trust, says Bill Trudell. See Class, page 2 See Questions, page 2 'The court is no place for petty squabbles,' says David Sterns. PM #40762529 REGULATORY DIVIDE Should solicitors have separate body? TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | mcleishorlando.com cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM $4.00 • Vol. 25, No. 19 June 2, 2014 Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMEs L AW TIMEs A I Photo: Robin Kuniski

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