Monday, August 29, 2011

Not to worry Chief Justice Scott the process works!

Good Day Readers:

Chief Justice Scott is discussing Judicially Assisted Dispute Resolution a voluntary process available to both parties in civil court. The objective is to avoid a lengthy, costly trial for a legal system already stretched to the limit - in Manitoba it's not unusual for assignment of a trial date to take up to one year or more from the request being made.

With JADR both sides submit a list of three judges and if they can agree on one it begins. However, the process can be cratered if the Plaintiff(s) or Defendant(s) choose to withdraw during the negotiation phase.

By way of very brief background, long story short, our precursor site CyberSmokeSignals was advised by a well-informed anonymous source (September 2003) the Canadian Taxpayer financed Manitoba Metis Federation had assigned a lawyer to monitor CSS in search of litigious material. The "Defamation Watch" had begun. In response we retained the services of a Metis solicitor who agreed to act pro bono as our legal advisor. Believe it or not this same individual wrote the allegedly defamatory material at no time cautioning us it might contain potentially litigious statements. Another Ripley's, he went on to become a crown prosecutor in Alberta.

Fast forward to March 2005 when a Statement of Claim was finally filed. I recall at the time reading it and thinking, "This is eventually going to collapse all over the Plaintiffs." What I didn't realize was how long it would take.

It was a classic textbook case of what American legal scholars have came to refer to as a SLAPP (Strategic Lawsuits Against Public Participation). The following illustration describes the concept much better than we ever could.

Manitoba Justice's online File Registry ( lists almost 250 documents the vast preponderance filed by the Plaintiffs in MMF et al. versus Terry Belhumeur et al. (CI 05-01-41955). Toward the end Winnipeg lawyer Mr. Anders Bruun entered the case as my attorney. Some may recognize this name from his representation of Friends of the Canadian Wheat Board in its current dispute with the federal government. He recommended and convinced me to try JADR again.

Very early in this legal "odessey" an attorney Mr. Jeff Niederhoffer, who acted briefly for the Defendants before accepting a position out of province as a criminal defence lawyer, proposed JADR but was flately rejected by the Plaintiffs. Later I too withdrew from a renewed attempt at Judicially Assisted Dispute resolution because of the accumulated actions of the Plaintiffs' lawyer. When it was suggested again this time by Mr. Bruun the Plaintiffs almost tripped over themselves rushing to accept - it was indeed amusing!

Before finally reaching JADR I had survived approximately 25 Pre-Trial Conferences (That's probably more than convicted British Columbia serial killer Willie Pickton!) some of which involved both sides filing and arguing Motions; out lasted two Court of Queen's Bench Pre-Trial Justices and filed an appeal with the Manitoba Court of Appeal - possibly the first Manitoba layperson to do so.

I knew the Defence had at least four high cards:

(1) Manitoba jury trials for civil matters are extremely rare almost unheard of - I insisted on my right to trial by judge and jury because it would have likely attracted mega mainstream media attention. How could this possibly benefit a taxpayer funded organization? Under Justice Simonsen a trial date had been set for March 1, 2010 to last 6-weeks. When Justice McKelvey replaced Justice Simonsen it was reduced to 4-weeks

I then filed a Motion for an adjournment of the trial date so my appeal could be heard by an appealate court. Justice McKelvey heard and granted the Motion - a significant blow for the Plaintiffs. Eventually, JADR made the setting of a new trial date unnecessary

(2) Jury nullification is a subject which seems to be rarely discussed in Canadian legal circles. Not so in the United States where the courts are replete with examples. Simply stated, layperson jurors sometimes view/interpret the law somewhat differently than legally trained judges and lawyers leading to the potential for acquittals

(3) One of the Defendants would be self-represented. Or as Pre-Trial Justice Karen I. Simonsen noted, on more than one occasion, this could significantly delay and complicate legal proceedings while, for example, the jurors had to leave the courtroom while points of law were explained to the "self-rep"

(4) The lawsuit was an ill-advised and conceived classic SLAPP from the get go. As such it was full of Big, Big Holes

Suffice it to say, after the JADR Mr. Bruun and I left the courtroom with huge smiles on our face. Because the Plaintiffs insisted a confidentiality clause be written into the settlement agreement that's as far as I can go.

So you see Chief Justice Scott, Judicially Assisted Dispute Resolution can work.

Perhaps it's time to write a book about the Self-Represented Litigant versus the Canadian Judicial System but what should it be called?

Clare L. Pieuk


The Defamation Act of Manitoba is almost 30-years old during which time there have been no significant changes. It's been a while since I read it but we do not recall any direct reference being made to the internet, blogs, bloggers, nuisance/abuse lawsuits or SLAPPS. Perhaps it's time for an overhaul.

Sad truth is that's unlikely. Manitoba legislators will only take action unless or until someone successfully challenges The Act under provision of The Canadian Charter of Rights and Freedoms at which point provincial politicians will have no other option.

Electronic Copy
The Lawyers Weekly

Ethics, judges and mediation
By Cristin Schmitz
September 02 2011 issue
Chief Justice of Manitoba Richard Scott. [Photo by Cristin Schmitz for The Lawyers Weekly]

As part of a planned update of its ethical guidelines, the Canadian Judicial Council (CJC) is poised to examine the thorny questions of whether, when and how judges may appropriately do court-based mediation, The Lawyers Weekly has learned.

Manitoba Chief Justice Richard Scott, the chair of the CJC’s judicial conduct committee, revealed during an interview that the disciplinary body for Canada’s 1,100federally appointed judges is preparing to revisit, and eventually update, its ethical guidelines for judges. He said since the council of federal chief justices and associate chief justices issued the “guidelines” (they are advisory only) in 1998, new ethical questions have emerged, including concerns about Canadian judges’ participation in international activities and judges returning to the practice of law after they step down or retire from the Bench.

However, no judicial ethical issues may be more timely or important for the administration of justice than those currently swirling around judges’ participation in court-based mediation — a phenomenon that has taken hold and grown, albeit unevenly, across the country.

A leading proponent of judicial mediation, Ontario Chief Justice Warren Winkler, called last December for lawyers to debate the issue and the Ontario Bar Association recently recreated a Judicial Mediation Taskforce.

Chief Justice Scott told The Lawyers Weekly there remains a fundamental unresolved question about whether judicial mediation risks undermining the public’s view of the judiciary as society’s ultimate impartial arbiters.

“I’m no expert in this — but mediation done properly involves caucusing,” Justice Scott explained. “Caucusing [means] you meet with the parties independently. And the long-term worry that I have — and I have to tell you this worry is not shared by all judges — is its long-term impact on the public’s perception of our impartiality. Judges do things in public. Judges do things in the presence of both parties. Now here’s the judge [who is doing mediation] meeting with one group and then the other.”
Chief Justice Scott said many “fine, ethical, experienced” judges who do mediation have told him they have not experienced problems. “In [Saskatchewan] the judges who are doing it think it’s the greatest thing since sliced bread,” he acknowledged.

Nor has the CJC, to the best of Chief Justice Scott’s knowledge, had mediation-related complaints about judges. “But it’s a worry,” he observed.

He noted that during the Canadian Institute for Advanced Legal Studies program at Cambridge this summer “there was a lot of discussion there about judges changing their role too aggressively, and the long-term impact that may have on the judiciary and the public’s confidence in our impartiality, so that’s my worry.”

This concern might weigh more or less heavily, depending on the type of case, he suggested.

“In the kind of [mediation] work that Chief Justice Winkler does, which is high-end commercial work, the concern about the public’s perception of impartiality is very different than it is in a family dispute,” Chief Justice Scott noted. “In Chief Justice Winkler’s circumstances, he is dealing with highly sophisticated clients represented by very experienced and sophisticated counsel, so they know the rules. They know what the judge is doing. They understand the ramifications. That’s not necessarily the case in other circumstances.”

Chief Justice Scott said that the planned re-examination of the ethical principles by the CJC’s Judicial Independence Committee is still “in the very preliminary stages.”


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