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Law Brief

Attorney Collin Hirschfeld:  Judge Tampering

Bolstering Weakness in a Case via Late Submissions

Communicating with a Judge Outside of Court

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:

  • The litigant formally seeks leave of the court to re-open the case and file further material.
  • All parties receive the documents, with a fair opportunity to respond.
  • When the rounds of answers and rebuttals end, the judge rules on the original motion.

Unitex Quilting and Fibres Inc. v. Salud (2001) SKQB

Judge Tampering in Civil Litigation:  Unilateral Submissions Civil Law

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.

Yurchak v. Yurchak (2000) SKQB

Cannot Bolster Weaknesses in Case After Court Doors Close Civil Law

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 (2007) ONSC

Virtually Absolute Ban on Ex Parte Communications Criminal Law

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.

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia

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