Law Times

PAGE 12 FOCUS OctOber 6/13, 2008 • Law times away with sleeping on the job. Particularly when counsel, for better or for worse, think there might be some tactical advan- tage in the bench's somnolence. But here's a caveat for counsel: don't go changing your mind on appeal about the relative merits of having Rip Van Winkle ad- judicating your case. If Leader Media Production v. Sentinel Hill Alliance Atlantis Equicap Ltd. Partnership is any indication, the Court of Appeal won't tolerate any belated bleating that your No tactical advantage to letting sleeping judge lie U BY JULIUS MELNITZER For Law Times nlike most of the rest of the natural world, it ap- pears, trial judges can get client didn't receive a fair trial. "The case stands for the prop- osition that you can't use a com- plaint about a trial judge's inabil- ity to follow the evidence as an insurance policy, or a safety net, if you lose," says Chris Paliare of To- ronto's Paliare Roland Rosenberg Rothstein LLP, who represented Leader Media, the plaintiff and respondent on appeal. But Peter Doody, of Borden Ladner Gervais LLP's Toronto office, sees some difficulties with the Court of Appeal's approach to the issue. "The don't lie in the weeds approach is understandable, but it could be extremely dif- ficult for counsel to apply in practice," he says. E.V. Litigation & Financial Services Inc. Elaine G.Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations 4 5 Sheppar d Avenu e East, Willowdale, Ontario M2N 5W9 Suit e 900 evlitigation@rogers.com Telephon e o r Fax (416 ) 930-1370 (905) 731-5812 when Sentinel, a film financier, agreed to fi- nance two movies that Leader was produc- ing. Subsequently, the federal government changed its incentive scheme for film financ- ing, causing problems with Sentinel's financ- ing regime. Sentinel refused to pay Leader, taking the position that the contract was conditional and that the condi- tions had not been fulfilled. Leader sued, and Superior The case arose Peter Doody Vlit_LT_Mar17_08.indd 1 3/13/08 11:55:47 AM Court Justice William Somers awarded Leader about $1 mil- lion in damages plus prejudg- ment interest. "What's interesting here is that this was a fairly complex case, and there was nothing in the appellant's factum that at- tacked the first eight or 10 para- graphs of the reasons, which set out the complicated transaction on which the judgment was based," Paliare says. "I think the judge was getting transcripts as he went along, because I heard him ask the reporter for them after I did my opening." Sentinel appealed. Earl Cher- niak of Lerners LLP's Toronto office, who argued the appeal for Sentinel, moved to admit fresh evidence showing that the trial judge was unable to follow the testimony because he fell asleep frequently albeit for very brief periods during the trial. Justice Janet MacFarland, writ- ing for a unanimous bench com- posed also of Justice Marc Rosen- berg and David Watt, admitted the fresh evidence "because it re- lates to the validity of the trial pro- cess," but dismissed the appeal. At the core of MacFarland's reasoning was the fact that the "Instead of confronting the trial judge, after discussions among appellants' counsel (including a senior litigator at the firm who re- mained at the office and was not directly involved in the trial per se), they made a deliberate deci- sion not to raise the issue." "As [one lawyer] put it in his af- fidavit, they decided to 'wait and see how things played out.' Pre- sumably, if the trial result was in their favour they would do noth- ing; if not, they would have this additional evidence to use as a basis for appeal arguing that they were denied the right to a fair trial." Aggravating the situation was the fact that Sentinel did not raise the issue of the trial judge's drows- iness on its motion for a mistrial after the reasons were released. There were only two prec- edents on point. appellants, represented by Toronto's Good- mans LLP at trial, de- liberately chose not to raise their concerns with the trial judge. "Instead they made a deliberate tactical deci- sion to in effect — as re- spondent's counsel put it — 'hedge their bets,'" MacFarland wrote. The first was the 1997 deci- sion of the Queensland Court of Appeal in Stathooles v. Mount Isa Mines Ltd., a similar case in which counsel did not object at trial. "It cannot be accepted that there is an entitlement to do nothing at the time, hold the point in reserve until the deci- sion is given and then, since it has proved to be adverse to the appellants, seek to set it aside," wrote the Queensland Court as quoted by MacFarland. The second case was the 2007 decision of the Alberta Court of proclivities to daytime napping were unknown to Sentinel's counsel, or that the firm hadn't benefited from them. "Sentinel's lawyer at trial told me that people in her office had a case with Somers last year where he was napping and nobody raised it with him," Paliare says. "But within a couple of weeks of the trial, he rendered an excellent set of reasons in which Good- mans' client was successful. "I guess his MO was to get transcripts and to follow the evi- dence in that way." Leaving aside the obvious ques- tion of how the use of transcripts affects trial judges' vaunted and — on appeal — much belaboured powers to assess witnesses' credibil- ity, Leader Media's lesson is clear: do not let sleeping judges lie. And this time around, Sentinel hasn't: Cherniak has filed an ap- plication for leave to appeal to the Supreme Court of Canada. LT Appeal in R. v. Chan, which reached much the same conclusion. As did MacFarland. "In my view, the same reason- ing must apply here," she wrote. "While appellants' trial counsel was not experienced [this was her first trial], the record dis- closes that she did consult with senior litigation counsel in her firm about the judge's inatten- tion. Together they made the de- cision to do nothing about it at the time but to, as respondent's counsel put it, 'roll the dice.' "Counsel was obliged to bring the trial judge's inatten- tion home to him at the time. Not having done so, and hav- ing decided to wait and see what happened, they cannot now raise that inattention for the first time as a ground of appeal on either a substantive or contextual basis." Finally, it's not as if Somers' WHAT CAN YOUR ONLINE RESEARCH SERVICE DO FOR YOU? CAN YOU ACCESS CANADIAN JUDICIAL INTERPRETATIONS OF MORE THAN 30,000 TERMS? www.westlawecarswell.com/youcan Request a demo for a chance to win $2,500 in AMEX gift certificates Untitled-4 1 www.lawtimesnews.com YOU CAN. Words&Phrases, exclusive to WestlaweCARSWELL, quickly shows you how key terms have been interpreted by the courts. With WestlaweCARSWELL, AUTHORITATIVE. INNOVATIVE. TRUSTED. 9/30/08 9:50:56 AM

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