What if the judge hasn't read my factum and I lose? Can I have another go?

Today's decision in Ottawa v.  Spirak, 2008 ONCA 299 considers whether the failure of a Court to review written materials before a hearing is an error that automatically leads to a miscarriage of justice.

At first blush it seems the question hardly needs to be asked. The written material is there to help the Court but if the Court has not read it that does not mean the hearing is unjust.

Nevertheless, the Court of Appeal did say Courts ought to review written materials before a hearing. However, a failure to review such material is not, in itself, a basis for an appeal.

The Court held:

[4]               We do not accept the broad contention of appellants' counsel that there is a miscarriage of justice in every case where the judge has not read the material prior to the hearing.  Certainly, judges should review the material filed before hearing a case.  However, in a busy court system it is inevitable that court lists, which often include both trials and appeals, may have to be split and cases transferred from one court to another, as happened here.  Even then, a judge should take the necessary time to review the material. Where that is not possible, the question becomes whether the judge, in effect, reviewed the material on the bench with the assistance of counsel.  On our reading of the transcript, that is what occurred in this case.  The judge ensured he understood the decision below, the salient evidence, the issues and the position of the parties. 
James Morton

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