The interests of justice require that all relevant and necessary information be placed before the Court. But that principle does not permit a litigant, of his own accord, to file further material after a motion is argued in Chambers, and before the ruling is made.
Chambers argument may point out weaknesses in one side of the lawsuit. That party seeks to bolster his position by mailing extra evidence or precedents directly to the judge after the court doors close.
Ethical problem: the other party is either kept in the dark, or has insufficient time to respond. Case-law shows that attorneys do try this tactic.
A judge can and should ban capricious, unilateral submissions. Filing additional material requires leave of the Court. The proper procedure is:
Office of the Registrar
Queen's Bench Court
520 Spadina Crescent East
Re: Q.B. #835
On October 7, a motion was heard in Chambers before Judge P. Foley for Q.B. #835. The decision was reserved. On October 8, Collin Hirschfeld of the McKercher Law Firm sent a new submission to the court by courier, which was directly related to this matter, and asked that it be considered prior to judgement.
I did not receive my copy of that submission until Tuesday, October 14. Mr. Hirschfeld sent it to me by ordinary mail. He posted it on Thursday, October 9 (see postmarked envelope) and it arrived after the long weekend.
This submission of Collin Hirschfeld comprised a cover letter plus five new reports of cases which total 97 pages. This package is very large, and I just received it today. I am prejudiced by the volume of material, by the apparently deliberate delay in having it reach me, and by the fact that Collin Hirschfeld wants to bolster his case via correspondence after Chambers argument is finished. Because I do not have sufficient opportunity to respond, I am objecting. The material is not properly before me, and it is not properly before the court.
Collin Hirschfeld is an experienced lawyer, having perhaps fifteen years at Bar. He had every opportunity to fully prepare for Chambers on October 7. The circumstances:
Collin Hirschfeld said in his cover letter:
“At the conclusion of the Hearing an issue was raised … Subsequent to that Hearing, we have found cases (that discuss the issue). We enclose copies of those authorities for your review.
But the court must respect and adhere to Queen's Bench Rule 331 which deals with time limits for filing evidence. This rule is interpreted by Yurchak v. Yurchak (2000) SKQB which states:
Counsel should not attempt to circumvent Q.B. Rule 331 by forwarding material directly to the court. The interests of justice demand that all relevant and necessary information be placed before the court, however, that does not permit litigants of their own accord to file further material after argument and before a decision, in an attempt to bolster their position once the weaknesses have become apparent.
In his cover letter Collin Hirschfeld added: “We have found cases where the relief sought was to strike the Statement of Claim, and although the Court did not strike the entire claim they did go on to strike out offending portions of the claim.” The cases he submitted are:
Each of those decisions analyzes in depth a Statement of Claim. In each case, the Judge chose problematic paragraphs from the claim and quoted verbatim from them, then discussed in detail the facts covered in said paragraphs. The paragraph numbers are not always mentioned, but the contents of the paragraphs are described in unmistakable detail. The paragraphs are effectively enumerated in the sense that an exact match can be made between the content of any paragraph and its number simply by looking at the Statement of Claim.
In those decisions, it is not clear who drove the selection process. Someone had to choose the specific facts, or the specific whole paragraphs, from the claim and say this material was not properly pleaded. Collin Hirschfeld assumes the Judge made the choice. That is not necessarily so. The defendant may have been the first person to enumerate the offending paragraphs or facts, which served to focus the attention of the Judge. The only way to tell is to access the court file and read the Notice of Motion and Affidavit filed by the defendant, to see whether said documents identify the facts or paragraphs desired to be stuck.
Collin Hirschfeld wants to argue that a defendant can achieve specific relief and get isolated portions of a claim struck, even though the defendant cites nothing more than the general published version of Q.B. Rule 173. He believes it is the Judge’s job to actually apply that Rule to a given Statement of Claim.
Collin Hirschfeld has not completed his research. To find out whether any of his five cases are authoritative, he must go back to the court file for each, and collect a copy of the Motion and Affidavit from each defendant, to show who first identified the unsatisfactory paragraphs or facts of a claim.
In my own civil case, Collin Hirschfeld failed to disclose any concrete grounds to strike my Statement of Claim. He did not enumerate any paragraphs in my Claim which should be amended, nor itemize any facts which should be struck. In the Grounds section of his motion, he simply quoted the entire published version of Q.B. Rules 173(a), 173(c), and 173(e). Collin Hirschfeld made no effort at all to tailor those rules to my Statement of Claim.
The Latin phrase ex parte means ‘on one side only; by or for one party.’ An ex parte communication occurs when one party in a case writes to or talks directly with the presiding Judge about the issues of the case without the other party's knowledge. Lawyers and litigants must refrain from attempts at ex parte communication with a Judge in an effort to sway the Judge's opinion on a particular matter, or to make up deficiencies in a case after the court doors close and the litigants have gone home.
The rule banning ex parte communications ensures that all parties have the same information as the judge who will be deciding the case. The opposing party may well disagree with the ex parte information, once it is disclosed, and deserves the opportunity to contest it in court. If you do try to communicate with the judge: (1) The court is required to disclose any ex parte communications to all parties, who are then invited to respond. (2) An ex parte communication may cause your case to be delayed or even dismissed. (3) The court may ‘strike’ (delete or ignore) any evidence affected by your ex parte communication.
Are ex parte communications ever allowed? Yes, in select circumstances provided by statute. Examples: an emergency restraining order; certain family-law issues; or confidential tort settlements. Otherwise, you ask the judge to take an action via a Motion filed with the Registrar's Office and served it on all parties. If you disagree with a judicial ruling, your remedy lies with the Appellate Court. The rule against ex parte communication has equal significant in both civil and criminal law, as seen in the precedents below.
The Judge censured the practice adopted by counsel of forwarding additional information to the court after argument was concluded, but while the decision was reserved. Specifically, the applicant sent material to the court to address arguments made by the respondent in Chambers – days after the court doors closed! Initially it appeared from the applicant's covering letter that he intended to seek leave of the court to file this information. That was not done. The judge established prudent rules:
Litigants should not, of their own accord, file further material after argument and before a decision, in an attempt to bolster their positions.
Leave of the court is required. The party must apply pursuant to Queen's Bench Rules 331 and 534 to re-open the case and file further material.
Legal venues, empowered to impose liabilities and sanctions upon the parties, must preserve a spirit of impartiality. Submissions made after court doors have closed must follow a procedure which is parallel whether the submission consists of additional evidence or additional points of law; and whether the venue is a formal court or a quasi-judicial tribunal.
Procedure: The instigating party seeks leave of the court or tribunal to make an additional submission, and must so advise the other party. All parties are then allowed input. Finally, the court decides whether or not to receive the proposed additional submission.
This case also criticized the approach of counsel in placing material before the Court. After an application was argued in chambers, one party forwarded to the Court additional documents which bore on the financial arguments of the case. The same party, on a later date, forwarded further materials. The opposite party, quite properly, objected. The interests of justice require that all relevant information be placed before the Court. That principle, however:
Does not permit litigants, of their own accord, to file further material after argument and before a decision, in an attempt to bolster their position once the weaknesses in that position become apparent.
To file additional material requires leave of the Court. The proper procedure is to apply pursuant to Queen's Bench Rules 331 and 534 to re-open the case and file further material.
The Court has a wide discretion to allow additional evidence to be presented, particularly where no judgment has been rendered, in order that a decision may encompass the merits of the case. This discretion is not to be exercised capriciously, but judicially where the equity of the situation warrants it.
Hamel v. Hamel (2000) SKQB is a similar case. Counsel for one party made unilateral submissions to the court several days after Chambers argument had finished. and court doors had closed. The other party, left in the dark, had no opportunity to respond. The Judge (Mary-Ellen Wright) who heard Hamel also heard Yurchak (in the same year). Both rulings deliberate consistently on the topic of unsportsmanlike late submissions.
R. v. Deleary discusses a Preliminary Inquiry Judge who had made ex parte statements about a case to Crown Prosecutor Ms. Maguire. The Prosecutor knew at the time it was improper, but magnified the difficulty by failing to disclose the fact and content of the meeting to defence counsel. When the Preliminary Inquiry reconvened, Maguire and the Judge still failed to place their meeting on record. Given Maguire's extensive experience in law, this was no accidental oversight. The higher court ruled:
“Ms. Maguire did not disclose to the defence the fact or nature of her meeting with the Preliminary Hearing Judge. It is entirely reasonable to infer, and I so find, that it was intentional: she hoped to gain a strategic advantage. I agree with the defence submissions in this regard.
“Maguire acknowledged she knew her first ex parte meeting was relevant to the case. She knew subsequent private meetings with the Judge were improper and ought not to have occurred. Then, when told disclosure would be made to the defence, Maguire's instinctual reaction was concern for her own status and protection from scrutiny.
“The ex parte communications were relevant and did alter Maguire's direction in prosecuting the case. The defence had a reasonable apprehension of bias.”
It is a time-honored rule that counsel for one party should not discuss their case with the presiding Judge except with the knowledge, and preferably the participation, of counsel for the other side. This rule is virtually absolute. Ex parte communications invariably raise an apprehension of bias. The court does not countenance participation by its members in secret ex parte discussions with the attorney for one side, nor intentional suppression of information about the discussion, in order to gain a tactical advantage.
Tuum Est - It Is Up To You
No treaty is ever an
impediment to a cheat
Sophocles (496-406 BC)
In Canada, the Canadian Medical Protective Association (CMPA) retains at least one law firm in each province. The firm becomes dedicated to the defence of doctors and other healthcare professionals.
They become the go-to firm for any health professional who is sued for malpractice or accused of felony crimes. Such firms have a century-long reputation for amoral tactics, logged for posterity in court rulings.
Saskatchewan, being a small province, has just one firm dedicated to CMPA interests. This is McKercher LLP, a prominent firm which operates a branch in both Saskatoon and Regina (the two main cities).
Details are known regarding McKercher LLP via public profiles published on their own website, and in Canadian Lawyer Magazine.
The profiles disclose the firm's main focus, which has remained consistent over years. Be aware: McKercher not only includes the CMPA on their list of key clients, they give the CMPA top billing on that list.
The CMPA is the crème de la crème among McKercher clients. The Canadian Lawyer profile states:
McKercher: Core Practice Areas
Personal injury and insurance litigation … professional regulation for a number of professional organizations as well as professional defence.
McKercher: Key clients
Canadian Medical Protective Association (consistently heads the list).
McKercher: Core Practice Areas
and Key Clients 2017
Canadian Lawyer Magazine
Copyright © 2008-2018 Georgena Sil. All Rights Reserved.