Law Times

LaW TIMeS • OCTOBeR 26, 2015 Page 5 www.lawtimesnews.com against him had resolved without proceeding to a public hearing. The CLA, meanwhile, was only able to share a disposition letter with its membership, the judicial council explained in its recent rul- ing, "so that they would know that the judge took their concerns se- riously and had taken steps to ad- dress them." The specific details about the complaint were subject to a confidentiality order that cov- ered "any information or docu- ments relating to a mediation or a Council meeting or hearing that was not held in public." But after receiving the docu- mentation, the Star joined the CLA's request for full disclosure of the matter. In its ruling on Oct. 14, however, the judicial council ruled the confidentiality order was binding but found it would release a brief complaint letter that states that "the ground for the complaint is that Justice Ritchie fails to conduct proceedings in a judicial manner as is required of a judge of the Ontario Court." Lawyer Jacob Stilman says he has handled some impaired driving cases before Ritchie with "word-for-word" rulings where only the names of the accused or witnesses changed. He says that despite some lawyers' perception of bias against the defence by the judge, his main concern is about keeping information from pub- lic scrutiny. "My own view is that these things should be public re- cord. It's unfortunate the judicial council process was conducted away from public scrutiny." Trial and appellate lawyer John Rosen agrees the Ritchie matter is one that should be public just like a lawyer's disci- plinary case would be. NEWS "You want to have a transpar- ent system," he says. "I'm not taking sides one way or the other but I would have thought for the sake of trans- parency, the complaint and the investigation and the results would have to be made public in order to preserve the integrity of the judicial system. It's very, very difficult to identify systemic bias even in a context of one particu- lar judicial official because every case depends on its own and ev- eryone has a right to appeal. But when you have a series of con- cerns raised that turn into com- plaints, then someone has to do a real investigation to determine what the problem is in general terms." Goldstein says he has seen un- successful cases before Ritchie overturned on appeal and feels his rulings failed to take into ac- count the defence position. As a result, he's particularly unhappy with what happened with the complaint against Ritchie. "I un- derstand once a judge is elected there has to be discretion, there has to be an arm's-length rela- tionship between the politicians and the judiciary, but obviously this government has entered into that arena on other occasions when they want to sanction judges who don't do things that they like but they're not willing to sanction this judge," he says. "It's a travesty of justice." Defence lawyer Paul Burstein is also unhappy with what he says amounts to nothing more than a "hand slap" and suggests the re- maining confidentiality around the complaint will continue to cause concern. In the meantime, he says Ritchie continues to decide the fate of people who come before him, something he calls "a tragedy that's been going on for some time." "And it doesn't matter how many appeal judgments criticize him. I think the sad part of the recent news is that the judicial council has shielded itself behind hyper-technical claims of confi- dentiality rather than promoting the open-court principle about something as serious as why a judge, who has been repeatedly rapped by appeal courts for be- ing incapable of performing the essence of his job — keeping an open mind — why the judicial council saw fit to do nothing of substance. Surely, the public has the right to know," says Burstein. In a sample of 19 appeal judg- ments of Ritchie's rulings ana- lyzed by Law Times, seven judges upheld his decisions while the rest ruled against. Those appeal rulings include comments such as Justice Michael Code's 2012 ruling that stated: "At no point in the trial judge's reasons did he make any reference to the moth- er's apparently credible corrobo- rating evidence. I cannot tell whether he considered it and it appears that he did not." Law Times also looked at 26 of Ritchie's reported decisions pulled from Westlaw last year that date back to 2000. Whether they were dealing with findings of guilt or innocence or motions, none of the rulings was in favour of the defence. "There is noth- ing in the defence evidence that raises a reasonable doubt in my mind," he wrote in a case dealing with theft, R. v. Johnson, in 2000. Ritchie didn't return requests for comment before press time. LT Case against Ritchie should be public: Rosen Continued from page 1 ents may just not be able to get it," he says. Berman, however, says clients have become increas- ingly familiar with that reality. "Clients can't be as conservative as they might have been in the past when choosing class counsel," she says. "It's all part of everyone becoming accustomed to the new ways of doing things." Indeed, clients have banded together even when their interests aren't exactly the same. "In the Sino-Forest securities litigation, for example, we acted for all the auditors even though there were dif- ferences in the presentation of their due-diligence de- fences," says Zakaib. There are also remedies even in the case of outright conf licts. "You can have different teams of lawyers work- ing for different clients within the firm," says Zakaib. "But that's unusual." However that may be, things aren't likely to change. "The reality of complex commercial litigation today is that it's not uncommon to have dozens of defendants em- broiled in cross-border class proceedings," says Naudie. And quite apart from the difficulties involved in find- ing counsel, co-ordinating a seamless defence strategy may be an even greater challenge. Consequently, joint defence agreements or arrange- ments are on the rise. "The idea is to have extremely specialized teams drawn from a number of defence firms exploring particular issues and particular motions," says Naudie. "Remember, the resources that defendants can draw on is enormous when they combine the legal talent and financial where- withal available to them." The result is a note of caution for the plaintiffs' bar. "Counsel have to be sure that they're not making a case unmanageable by suing everyone in sight," says Naudie. But even if they do, the class action defence bar has come a long way since class proceedings came to Ontario some 25 years ago. "At the outset, we all had to learn what class actions were about. But that hasn't kept the bar from growing, and my guess is that it will probably continue to do so," Zakaib says. LT Joint defence arrangements on the rise TF: 1.888.223.0448 T: 416.868.3100 YOUR ADVANTAGE, in and out of the courtroom. (YHU\WLPH\RXUHIHUDFOLHQWWRRXUßUP\RXDUHSXWWLQJ \RXUUHSXWDWLRQRQWKHOLQH,WLVDOODERXWWUXVWZHOOSODFHG Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. www.thomsonrogers.com TRUST DAVID TENSZEN | DAVID NEILL | STACEY STEVENS Untitled-3 1 2015-10-20 2:34 PM Continued from page 1 encourages readers to send us letters, but will edit them for space, taste, and libel consideration. Please provide your name, address and contact number and send all letters to: Law Times, 2075 Kennedy Rd., Toronto, Ont. M1T 3V4 E-mail: glenn.kauth@thomsonreuters.com

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