Criticism of non-parties

Sometimes during a trial it seems as if a non-party has acted inappropriately.

The Court may then be required to make findings of fact that hold that non-party up to criticism. Of course, the non-party had no chance to explain what really happened. Accordingly a Court should be very careful about finding wrongdoing by non-parties.

Today's Court of Appeal decision in Butty v. Butty, 2009 ONCA 852 deals with such a situation. A lawyer was strongly criticised by a trial court and that lawyer intervened on appeal. The Court of Appeal cleared the lawyer's reputation and noted the problem could have been avoided had more care been taken at trial:

[20]         As a result of the reasons for judgment, Mr. Jaskot has suffered unwarranted personal and professional embarrassment.

[21]         This unfortunate situation could have been prevented in either of two ways.  First, when the trial judge realized at the end of the trial that there were two parcels of land rather than one, he should have used a procedural remedy to resolve his concern about the matter.  He could have – and should have – invited counsel to make submissions on the matter.  If necessary, the parties could have re-opened their cases, counsel for the respondent could have been given an adjournment to allow her an opportunity to deal with the matter or a mistrial could have been declared.  Second, when the trial judge expressed some concern about the matter at the end of trial, counsel for Ms. Butty should have made it clear to him that she was under no misapprehension that the farm property consisted of two parcels of land.  The suggestion that Mr. Jaskot's theory that the two parcels could only, or would only, be sold as a single piece of farmland in no way explains away these failings.  That theory could have been tested and challenged in the normal fashion.  It does not amount to an attempt to deceive the court into believing there was a single property at issue.

[22]         This court cannot truly repair the damage that Mr. Jaskot has suffered.  Having said that, its comments are intended to serve as an unequivocal statement that there was nothing improper in his conduct in this matter.  We regret what appears, on this record, to be unwarranted judicial criticism levied against him. 
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

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