April 27, 2009

Nova Scotia Practice: “New matters” in re-examination

Filed under: 1 — ruleswatch @ 9:35 am


In the course of cross-examination, the divorce petitioner was asked about personal bank accounts she had maintained after the separation between the parties (perhaps even before) but which she had not disclosed on her statement of financial information. The evidence was that she had transferred money from the joint account of the parties into these personal accounts.

The Judge, Justice Beryl MacDonald, found there was no doubt the evidence was relevant: “What she did with the money after these transfers occurred is an issue before me.” When cross-examination ended, her counsel sought to obtain and introduce the records. Respondent’s counsel objected.

But there were no apparent alternative sources of evidence: “…she is the only witness who can speak about these records. She has already given her direct evidence. She has been cross-examined. All that remains of counsel’s right to question her is upon re-direct or, as this stage of a proceeding is also called, upon re-examination.”

Rejecting other heads of admissibility, Justice MacDonald ultimately concluded the Court had the discretion to admit the records and testimony about them.

She found the evidence to be led would amount to “evidence which explains, qualifies, clarifies, minimizes or limits the effect of testimony given in cross-examination or which puts into perspective any facts revealed in cross examination which might discredit the witness”. (Campbell v. Jones, 2002 NSCA 128, para. 307).Citing from R v. Moore (1984), 15 C.C.C. (3d) 543 (Ont. C.A.), the Court said:

The right to re-examine exists only where there has been cross-examination, and must be confined to matters arising in cross-examination. New facts cannot be introduced in re-examination. The judge may, however, in his discretion grant leave to introduce new matters in re-examination and the opposite party may then cross-examine on the new facts. In re-examination leading questions may not be asked. See Phipson on Evidence (13th Ed.). at p. 823-24; Wigmore on Evidence (3rd Ed.), vol. 6, p. 567.

Interestingly, the judge set out the following scope to prepare for that re-examination. She permitted the petitioner’s counsel to discuss the matter with his client:

[7] ….In this case counsel will need to consult with Ms. MacLean to arrange to obtain the bank records and to review their content with her prior to testimony on re-direct. In addition the cases I have reviewed provide for a right to cross-examine the witness about the new evidence given upon re-direct. The cases are silent about further re-direct after that crossexamination but because there may be a need to explain, qualify, or clarify Ms. MacLean’s testimony after cross-examination, re-direct will be permitted but only in respect to testimony given about the records.    


                                                                                                                                                                                                                                                                                                                                                   MacLean v. MacLean 2009 NSSC 126



Consolidation Rejected

Filed under: 1 — ruleswatch @ 6:49 am

In Best v. Pontius et al., C.A. No. 304237 2009 NSCA 39, Roscoe, J.A. relied squarely on deference to reject an appeal of a refusal to consolidate the trial of two separate motor vehicle accident claims which had occurred four years apart. Consolidation was sought mainly on the grounds that medical evidence was common to the two actions. The appeal was rejected:


[12] With respect, the appellant’s arguments amount to a request for this court to



reassess and reweigh all of the relevant factors to determine if we might have

exercised the discretion differently. That is not our role. The chambers judge

applied the proper principles of law, considered all of the relevant factors and no

patent injustice results from the decision to deny the application for consolidation.

Given the circumstances, including the time that elapsed between the two separate

accidents, the two different applicable insurance schemes, and the differences in

readiness for trial of the two actions, the chambers judge reached a decision that

deserves deference from this court.

The decision applied the Civil Procedure Rules, 1972.


Adult Sex Guidelines not Law

Filed under: 1 — ruleswatch @ 6:35 am

Hardy new news, but the decision of the Ontario Superior Court in R. v. Glad Day Bookshops Inc.[2004] O.J. No. 1766 90, an appeal from a provincial court conviction in the censorship of home videos, gives a handy review of when “policy” is not “law” for the purposes of s. 1 of the charter (“…reasonable limit prescribed by law…”).  Juriansz, J., (as he then was) noted transparency, the authority of maker or guidelines, accessibility of guidelines, and the procedural casualness with which they could be changed to scotch any argument the government could use the guidelines to mount a s. 1 defence to a freedom of expression challenge:

[90] The government also seeks to rely on the “Adult Sex Guidelines” developed by the Board, which it submits provides additional guidance about the meaning of the criteria set out in s. 14 of Reg. 1031. These Guidelines set out the criteria to guide the Board’s discretion in greater detail than s. 14(2) of the Regulation provides. However, there is no statutory authority for the Guidelines in either the Act or the regulations and the Guidelines are not reviewed or approved by Cabinet. The Guidelines lack the status of law. The current Guidelines were prepared in 1998, disclosed to the “industry” in 2000, but remained unavailable to the general public. The copy of the Guidelines that were made an exhibit at trial were labeled “Confidential”. The Board may change the content of the Guidelines when and as it chooses. I find that government may not rely upon the Guidelines as limits prescribed by law.

April 22, 2009

NHL QUARTER FINALS: New Jersey Devils 3; ‘Canes 2 JUDICIAL NOTICE: New Jersey Appeal Division 1; Wikipedia 0

Filed under: 1 — ruleswatch @ 8:26 pm

The Appeal Division of the Superior Court of New Jersey in ALISADES COLLECTION, L.L.C.,v. GRAUBARD,A-1338-07T3 has determined that a trial court’s acceptance of a Wikipedia article to determine whether or not the Plaintiff collection agency could sue was in error. The court found that, inter alia judicial notice under the state’s evidence requires “sources whose accuracy cannot be reasonably questioned.” The courr reached its decison after considering Wikipedia’s “own self-assessment” as the”online encyclopedia that anyone can edit.”2 Anyone with an internet connection can create a Wikipedia account and change any entry in Wikipedia…” the Court went on.

April 14, 2009

Jurisprudence sans frontieres: Foreign Authority in the US Supreme Court

Filed under: 1 — ruleswatch @ 8:49 pm

Ongoing American ideological bun fighting  over whether the US Supreme Court should cite to foreign authorities in working out its own judgements has spilled into the pages of the New York Times. Sunday’s edition quotes Justice Ruth Bader Ginsburg (a proponent of using outside authority) as saying, “The Canadian Supreme Court, she said, is ‘probably cited more widely abroad than the U.S. Supreme Court.’ ”  

Lest anyone’s head were to swell too quickly, the judge made sure that the implication was clear: 

There is one reason for that,” she said: “You will not be listened to if you don’t listen to others.”

At the same time, another great American thinker, CNN’s Lou Dobbs, is outraged by the very idea that US jurisprudes would even think about looking elsewhere for test-driven ideas.  

Ginsburg must be wrong.

NS Civ Pro: Factum length– the long and the short of it.

Filed under: 1 — ruleswatch @ 7:59 pm

Justice Hamilton has granted substantial room to lengthen a factum. In Jachimowicz v.Jachimowicz 2009 NSCA 36, the appellant moved in Appeal Court Chambers for leave to file an extended length factum, citing a series of novel arguments that required room for elaboration.

The appeal court judge met the appellant half way. A sample argument was much too long, the court said:

 [8] The 40 page rule was implemented by this court to encourage concise and focussed facta. The sample argument submitted on behalf of the appellant misses that mark. As one example of that, the proposed argument contains pages of quotes from documents and decisions that will be included in the appeal book or in the appellant’s book of authorities. A short reference to the location of those quotes in the appeal book or book of authorities, placed at the end of the paragraph setting out the argument relating to them, is a more efficient way of referring to them and will result in a substantially shorter factum.

But the number of issues did give way for, still, a substantial exception:

[9] Nevertheless, given the number of issues raised in the appeal and the fact one full day was set for it to be heard, I am satisfied that the appellant should be given permission to file a longer factum but that it should not exceed 60 pages. I hereby give that permission. The appellant’s factum is in all other respects to comply with the provisions of Rule 90.32.

WHINGE: \ˈhwinj, ˈwinj\ Function: intransitive verb Inflected Form(s): whinged; whing·ing or whinge·ing Etymology: Middle English *whingen, from Old English hwinsian; akin to Old High German winsōn to moan Date: 12th century [Merriam Webster on line dictionary]

Filed under: 1 — ruleswatch @ 7:49 pm

N.S. Civil Procedure: Remember the electronic copy of the transcript!

Filed under: 1 — ruleswatch @ 7:48 pm

The current edition of Hints and Tips from the Prothonotary reminds us: “Civil Procedure Rule 90.30(6) requires the filing of an electronic copy of the transcript, in addition to including it in the hard copy of the Appeal Book. This means it can be sent on a CD with the hard copy of the Appeal Book or can be sent by e-mail to the Registrar at We have noticed that a large number of appellants are not filing the electronic copy of the transcript as required and staff are constantly calling counsel to obtain these electronic copies. We seek and count on the cooperation of counsel in insuring the electronic copy is filed as required by the rule.”

April 7, 2009

Filed under: 1 — ruleswatch @ 12:16 pm

Law, Rules, Guidelines, Practice 

M I T C H E L L & F E R G U S O N, A s s o c i a t e s
Barristers, Solicitors and Notaries Public

2704 Oxford Street
P.O. Box 9134
Halifax, Nova Scotia B3K 5M7

Telephone: (902) 425-7767
Facsimile: (902) 425-3224

April 6, 2009

A Reasonable Counsel “Test”? The Ontario Divisional Court where interactions with counsel found allegation of perceived bias

Filed under: 1 — ruleswatch @ 8:08 pm

In Ontario (Commissioner, Provincial Police) v. MacDonald [2009] O.J. No. 970, a decision by the Court, the Ontario Divisional Court has confronted – and disposed of – an appearance of bias claim in a highly fractious proceeding between, ultimately, the Commissioner of the O.P.P, Julian Fantino, on the one side, and a senior officer of the force who had been charged with Police Service Act offences, on the other.

To do so, the Court arguably conjured an apparent new, “reasonable counsel,” test to be applied where allegations of bias are built upon interactions* between the hearing authority and counsel for the complaining party.

In this case, the disciplinary hearing had been far from smooth. The Court’s decision set the context: “The hearing has gone on for fifteen days, nine of which have been taken up by the motion [by the respondent to enter a stay on the grounds of abuse of process]. There have been no hearing days on the merits.” [para 3]. (The Court did not note that there had already been a failed stay application in Divisional Court, Motions Court and a full panel hearing of the resulting review request.)

It then dealt with the complained of interaction as follows:

37 The fairest view of the exchange, …, is that at the 5:00 p.m. end of a day in which it appeared little progress with the hearing had been made, the Adjudicator expressed his frustration that a great deal of time had been wasted. Judges and counsel know that such things happen from time to time. Hearings sometimes take unexpected turns and that, compounded by the complexity of the law, can result in the expenditure of more time than expected. ..The Court carried on. “Reasonable counsel would perceive the comment about a waste of time to be an admonition to them to try to avoid falling into the trap of such time-consuming complications unnecessarily. Judges give such admonitions to counsel often enough that experienced counsel should know that this goes with the nature of the work and is not to be taken personally.”

The decision is worthy of a read.

As for the parties, it remains to be seen what will happen next.


*Comments the hearing adjudicator had made which Commissioner Fantino argued betrayed bias against his counsel and his investigation appear in the following [“Mr. Gover” is OPP counsel]: THE ADJUDICATOR: I know you’re not playing games, but I want information, and today we wasted a lot of time today. It wasn’t necessary. It was not necessary. Sometimes, we get so academic, we lose sight of the real issue, and I think that happened today…Let’s get common sense in the area. Forget about the academic part for some extent, because sometimes, you can get so tied up you lose sight of what the issue really is, and as far as I’m concerned, the issue is get the information before me. Argument time is going to come. Place your arguments before me and I’ll make my decision, but to horse around the way we have today, it doesn’t make me happy. MR. GOVER: I understand that, Sir, and I hope that because I’m the one on my feet currently that you don’t feel that this is solely or otherwise my responsibility. … MR. GOVER: I’ll do that, and I hope you understand that we’ve acted in good faith and tried to produce the — THE ADJUDICATOR: I don’t doubt it a bit, but sometimes, trying to act in good faith you get so tied up academically you forge about the real issue, and we all know what the real issue is here. Just get the information tome and I’ll make a decision. Don’t try and keep it from me or from the defence. All right. That’s all I’m saying today and we’re back here October 14th. …

Next Page »

Create a free website or blog at