Law Times

PAGE 6 COMMENT Law Times Group Publisher ..... Karen Lorimer Associate Publisher .... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editors ..... Helen Burnett . . . . . . . . . . . . . . . . . . . . . .Robert Todd Copy Editor .......... Matt LaForge CaseLaw Editor ..... Jennifer Wright Art Director .........Alicia Adamson Production Co-ordinator .. Mary Hatch Electronic Production Specialist ............Derek Welford Advertising Sales .. Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . .Rose Noonan Sales Co-ordinator ........Sandy Shutt ©Law Times Inc. 2008 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Battah knows. Battah, a Rod Stewart imperson- H ow do you lose your case in an Ontario courtroom without opening your mouth? David ator, probably felt, to quote his muse: "It's a heartache." But, now that the Court of Appeal has decided in his favour, calling what happened to Battah a "complete denial of natural justice," he's probably sing- ing a different tune. At the very least he's been given another shot as his mat- ter has been sent back to the Superior Court for a new hearing. It all started last October in Milton before Justice Kenneth Langdon. It was a case involving the estate of Battah's Aunt Margo, and he appeared in court JUNE 9, 2008 / LAW TIMES Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign address- es. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Helen Steenkamer at: hsteenkamer@clbmedia.ca or Tel: 905-713-4376 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, Kathy Liotta at 905-713-4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca or Rose Noonan at 905-726-5444 rnoonan@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Some guys have all the luck unrepresented — certainly not a rarity these days. But as Tracey Tyler wrote in her story for the Toronto Star, once Battah's request for a brief adjournment was de- nied, it was as if the 50-year-old enter- tainer "suddenly became invisible" in the courtroom. A lawyer for the aunt's third hus- written appeal court decision. "It was not. [Battah] was still there. Regrettably, the application judge did not call on him to say anything." Langdon then went on to listen to band brought an application seeking a $463,000 payment from the estate. Battah had lined up a lawyer to help him, but the new counsel couldn't attend that day due to prior commitments. So he did the right thing and sought the ad- journment — it would have been the first in the case — and was turned down. Then, the judge "proceeded as if the application was unopposed," said the the lawyer's submission but did not call on Battah to respond. And, he awarded the amount being sought, plus $50,000 in costs. "After five minutes, [Battah] had lost more than $500,000 without be- ing permitted to say a single word," said justices James MacPherson, Russell Juriansz, and David Watt. Battah told the Star in an interview that he "almost passed out. Everything started getting a little foggy and I felt a little flush. I fell back in the chair." His appeal lawyer Al Esterbauer noted in his factum to the appeal court that a judge enjoys a "wide latitude" in deciding whether or not to grant an ad- journment of a trial. The decision is "discretionary," he said, but in "exercising the discretion, the trial judge should balance the interests of the plaintiff, the interests of the defen- dant, and the interests of the administra- tion of justice in the orderly processing of civil proceedings on their merits." Whether Battah should win the motion or not is for a new judge to decide. But the appeal court definite- ly did the right thing in this case by sending it back. "Satisfied." — Gretchen Drummie find elsewhere? One 19th-century commen- tator thought he knew: "More wisdom and learning, more ma- turity of deliberation, and a . . . superior capacity for wise and impartial adjudication." Today we may be more cir- cumspect about declaring one group of judges simply wiser than all the others. But the ex- clusivity of appeal court practice still has its attraction for lawyers. No witnesses, juries, policemen, or other civilians. Just lawyers and judges, with the facts al- ready established, arguing out subtle interpretations of the law. There's also the bracing as- sumption that a court of ap- peal is a pillar of the British judicial tradition, ensuring that no citizen can be ordered about without the right to seek redress against wrongdoing or misjudgment. Turns out, however, that in historical perspective, ap- peal courts are rather new. In British Columbia, they are commemorating the 150th an- W hat do lawyers find in the Court of Ap- peal that they don't Inventing the court of appeal That's niversary of the founding of the colony of British Colum- bia, courts and all. But the Court of Appeal, founded 1910, has not yet reached its centenary. It's the same throughout Canada: The appeal court is invari- ably younger than the judicial system itself. That's even more striking History By Christopher Moore in Britain itself. In the remote past of England, justice was the gift of the crown to its sub- jects. And when judges were the king's men, to whom could one expect to appeal the king's own verdicts? For a long time, asking for a rehearing was an appeal for mercy, not justice. Well into the 19th century, the main ground of appeal in England was cleri- cal error in the record of pro- ceedings — nothing to do with justice at all. Such ideas were duly trans- ported to British America. Into the 1840s, the nearest thing to an appeal court in each Cana- dian colony was the lieutenant governor's Executive Council — his political advisors, many of them not even lawyers. When the rebels of 1837 were sen- tenced, there were petitions for clemency, but no appeals, and executions proceeded just days after the trial court verdicts. That changed quite suddenly in Canada, and it came along- side democratic reform. The same Canadian reformers who instituted responsible govern- ment in the 1840s also under- took judicial reform. from the Crown as a matter of principle, and they shrugged off the antique notion that judges had some royal or divine im- munity from error. In 1849, the nine judges of the three superior courts in Canada West were constituted judges of the Court of Error and Appeal, which could hear appeals from any of their three courts. The appeal process had begun to separate itself from the They separated the judiciary www.lawtimesnews.com trial, a trend confirmed by the establishment of the Ontario Court of Appeal as a separate court in 1876. Something similar took place in other provinces. In most, individual trial court verdicts were appealed to the trial court en banc un- til a separate appeal court be- came practical. Unlike the rebels of 1837, Louis Riel could (and did, though without success) ap- peal his 1885 conviction, first to Manitoba's Court of Queen's Bench, then to the Privy Coun- cil in England. The separation of British Columbia's Appeal Court from its Supreme Court in 1910 reflected the growth of the province more than a new philosophy of justice. England's courts, more heav- ily encrusted with medieval tra- ditions, were slower to adapt. It was 1907 before the Court of Criminal Appeal, with a de- fendant's right to appeal spelled out, was created there. the crown's gift to its subjects is preserved in the Lord Chancel- lor, who is still both head of the The tradition that justice is courts and a minister of govern- ment, though probably not for much longer. The idea that judicial error was possible was a reforming one, associated with democratic ideas of accountability. But the emergence of appeal courts also reinforced notions of a hierarchy of courts that seemed to go to the heads of many judges of appeal. John A. Macdonald be- lieved the head of every Cana- dian Court of Appeal should be knighted ex officio, and was annoyed when Ontario's chief justice Hagerty declined the honour. But, right across Canada, many judges of the new courts of appeal were astonishingly ar- rogant, rude, prickly about their exalted status, and quarrelsome among themselves about their precedence. Fortunately, they are not like that any more. LT Christopher Moore has recently been consulting on a centenary his- tory of the British Columbia Court of Appeal. He can be reached at www.christophermoore.ca.

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