University of Alberta Faculty of Law Blog

Slow Justice

I know the wheels of justice are slow, but who knew justice in Italy was this slow. The case has taken over 10 years to hear and decide, and now apparently the appeal may take another 10 years. The litigant is 102 years old.

Class Actions bad?

Is our legislation concerning class actions worse than what the Americans have? These authors think so.

Moving towards Specialization at the British Columbia Supreme Court?

The British Columbia Supreme Court is proposing to establish a new Commercial Division in the Vancouver Westminster registry.  This is an interesting development, particularly in view of the court having lost  The court has "lost business" over the years to arbitration, in part because of concern that some members of the court do not have the experience necessary to handle complex commercial litigation.  The possibility of specialization was discussed at least informally, I recall, in the mid 1990s, but it went nowhere.

Failure to Google=Negligence?

Plaintiff attempts to serve defendant with papers, but plaintiff claims he couldn't find the defendant, because mailing the complaint to the last known addresses all resulted  in returned mail- what result? If a simple Google search yields a different address than the addresses used for the mailing, chances are the courts are not going to be too impressed, and will probably dismiss the complaint for lack of effective service. See Munster v. Groce, 829 N.E.2d 52 (Ind. App. 2005).  The court noted that they Googled the defendant's name and found another address including a mention in an obituary of a death in the family.

What does this mean for lawyers? It means that Google is now an indispensable tool and that at the very least lawyers should have more skills than Appellate judges and their clerks! What does this mean for Facebook, MySpace, and other such sites? Perhaps lawyers will all have to get Facebook accounts to track possible parties to serve them.

E-File please

The future is here - a lawyer in Kansas who kept filing bankruptcy cases the old fashioned way was finally sanctioned for failing to follow the new e-filing mandates of the bankruptcy courts.

Canada v. Lameman: Summary Judgment and Limitation Periods at the SCC

The SCC yesterday in Canada (Attorney General) v. Lameman allowed the Appeal from the decision of the Alberta Court of Appeal and restored the decision of Slatter J. (as he then was) to grant summary judgment to the defendant Crown in the claim advanced by descendents of the Papaschase Indian Band.  The decision will be significant for students of civil procedure as it is one of the rare instances where a high court seeks to give some principled guidance on procedural questions (in this case on summary judgment and on limitation periods). 

Looking over the decision, it is obvious that the plaintiffs had an insurmountable problem, which was that they knew by no later than 1974 that they had, or thought they had, a cause of action.  The SCC specifically notes that the plaintiffs had no answer (and indeed filed no material) in response to that point.  Instead, both at the SCC and at the Court of Appeal, the plaintiffs made "vague references" (says the SCC) of evidence that "might be pleaded or proved in the future." 

Given that this case was hanging on the thinnest of threads, the ultimate outcome does not exactly mark the Alberta Court of Appeal's finest moment.  In fairness to the Court of Appeal, however, it must be added that it at least had the fortitude to make the plaintiffs bear their own costs, largely because of the conduct of the appeal by their counsel.  Specifically, plaintiff's counsel was said by the Court of Appeal to have, inter alia, (1) "argued and emphasized many hopeless procedural points ... which consumed considerable time and effort";  (2) "inaccurately recited the record or the [defendant]'s argument";  (3) "handed the Court and the [defendant] a new factum at the last moment";  (4) "consumed significant time and paper with unnecessary oration".  (Emphasis added).

$4000 Minor Injury Cap

Jennifer Koshan has a good piece on ABlawg reviewing Wittman J.'s decision in Morrow v. Zhang, which struck down the cap on damages for soft tissue injuries.

(On a related note, the U of A's local chapter of the Canadian Constitution Foundation is holding a panel discussion later this month on the cap).

Dumb Lawsuits

Here's one.  Home-grown, too.

Civil Pro (and Crim Pro) Bloggers: Rejoice.

Bouck's Law Blog is now fully up and running with current posts. 

More on Mulroney

If what I've read about the circumstances of this default judgment are true (specifically, that both sides' lawyers were discussing forum conveniens and that an application from Mulroney's lawyers to strike the action for lack of jurisdiction was pending), this default judgment will enjoy a mercifully short lifespan.  In fact, Mulroney's lawyers have filed a motion for an order setting aside the default judgment.  (Of course, we may read about it again (and again, and again) in the writings of the enlightened).

(Were I Mulroney's counsel, my first call (after having this judgment set aside) would be to the Law Society of Upper Canada, for a quick chat about Herr Schreiber's lawyers' sharp practice.) 

As for forum-shopping, it's hard to say whether or not this is part of a larger trend.  My perception is that the differences between jurisdictions are largely procedural (which could explain this case), not substantive.  (In part, this homogeneity is a result, I think, of the federal government's power to appoint all the section 96 judges in every province).  Most of the forum-shopping now is not between courts of one province or another, but between arbitrators.  Another example - and the only instance in which I recall ever engaging in anything approaching "forum-shopping" - is where counsel choose between the provincial superior court and the FCC in an area of concurrent jurisdiction (i.e. commencing a maritime action (for around $30,000) in the BC Supreme Court, with the hope that a massive claim about to be launched by the defendants ($120 million) would take the form of a counterclaim in that court, rather than a separate action in the Federal Court (where I couldn't get a jury).)

Brian Mulroney default judgment

I am no expert on Ontario's rules of civil procedure, but this story about a default judgment strikes me as odd. I would have thought that the case could have been dismissed on jurisidictional or forums non conveniens grounds.  So I suppose the plaintiff has to try to enforce this judgment in Quebec, and then have Mr. Mulroney collaterally attack the jurisidction of the Ontario court. I suppose he could also appeal in Ontario. Unless, I suppose the plaintiff could have argued that there was some connection to the incident in Ontario. 

What I am really interested in from the story is: are we seeing more and more forum shopping accross Canada for favorable verdicts? This is the norm in the U.S.  But Canadian lawyers I speak to tell me it is not as common here. If this does change, we may need some sort of choice of law and rules of jurisidction that apply to sort this mess out.  On the other hand, there is something to competitve federalism. Delaware is the U.S. state of incorporation for most large corporations, because it has managed to create an optimal set of rules for shareholders and managers alike.  In Canada, our rules tend to be uniform accross the country, and in fact, the push seems to be for more uniformity not less.