While looking for something else I stumbled across a page on Judicial Humor by staff at the Marion Gould Gallagher Law Library (at the University of Washington School of Law).
This page is a nice counterpoint to Dan Michaluk’s SLAW post last month on using humour (the correct spelling!) in legal advocacy.
The page from the Marion Gould Gallagher Law Library provides lots of examples by American judges writing their decisions in verse or inserting humour into their reasons (although somewhat frustratingly they link to password-protected Westlaw versions of the decisions, but they do provide some sample passages). One of the more famous examples involved a car accident involving a tree:
Fisher v. Lowe, 333 N.W.2d 67 (Mich. Ct. App. 1983)
We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree's behest;
A tree whose battered trunk was prest
Against a Chevy's crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court's decree.
What I like about this example (and there are others like it) is that editors at West also wrote the headnote in verse, using their own rhymes!
This brings to mind some examples of amusing or interesting Canadian court decisions:
- Joly v. Pelletier, [1999] O.J. No. 1728 (S.C.J.): The plaintiff’s claims were that the various defendants were conspiring against him because he was a Martian. Applying arguments of statutory interpretation, the court struck the plaintiff’s claims since only “a person” under the Rules of Court could bring actions and since the plaintiff was a Martian, he had no standing before the court (his claim was also struck as being frivolous and vexatious).
I have included the following quote in my training materials on effective litigation pleadings:
“Pleadings are supposed to be a road map – but not of all the roads in the world – but only how to get from Point A to Point B. Was this a road map? I think not, unless it be by Pablo Picasso” (ouch!) – see: National Trust Co. v. Furbacher, [1994] O.J. No. 2385 at para. 15 (Gen Div.), per Farley J.
How about this comment from a judge's evaluation of an expert witness:
One person in the Grande Prairie court room did not know how a grain truck unloads grain. Unfortunately for the defence case, that person was its expert accident reconstruction witness. (Double ouch!)
Labbee v. Peters (1997), 201 A.R. 241 at para. 72 (Q.B.), aff'd 1999 ABCA 246
Believe it or not, I found 5 instances on CanLII of “it was a dark and stormy night” and not one of them appears to have been used sarcastically.
A classic is the following decision by Master Funduk explaining the concept of stare decisis (judicial precedent) (the "punchline" is in the last paragraph):
McDonald is a decision by the Supreme Court of Alberta, Trial Division, now the Court of Queen's Bench. I am bound by decisions of judges of this Court unless they have been overruled by our Court of Appeal or the Supreme Court of Canada, or unless there are contrary decisions by judges of this court, in which case I would face a dilemma (which I could probably "solve" by ordering a trial of an issue).
Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.
I am bound by decisions of Queen's Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.
I do not overrule decisions of a judge of this Court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.
South Side Woodwork (1979) Ltd. v. R. C. Contracting Ltd. (1989), 95 A.R. 161 (Master Funduk)
The best advice, however, from Mailhot and Carnwath (both judges) in Chapter 8 of their book Decisions, Decisions… a Handbook for Judicial Writing (Yvon Blais, 1998), is for judges to use humour only cautiously: “Judicial humour is neither judicial nor humorous” and that litigants “don’t want to be the butt of ridicule or to be the target of scorn, sarcasm, or satire” (p. 111).
Despite this sage advice, are there any other examples in Canadian jurisprudence?
[Note: just prior to posting I noticed a potpourri of largely American examples of judicial humor on Strange Judicial Opinions at lawhaha.com.]
One of my favourite judgments of all time is Kuypers v. Langley, 1992 CanLII 693 (BC S.C.). In this decision, Justice D.A. Hogarth strikes down sections of a Langley BC by-law regarding dangerous dogs because the City invoked them under their emergency powers when there was no evidence of an emergency.
The whole judgment is worth reading. This paragraph about a possible emergency gives a flavour:
The Fisher v. Lowe humour continued in the reporter.
It's become a thing of legend now.
I have found this quotation comforting and I have frequently offered it to harried students. In McKenzie v. Scotia Lumber Co. (1913), 11 D.L.R. 729 (N.S.S.C.), the defendant innocently gathered the plaintiff's log raft with its own but, as soon as it realized the mistake, made efforts to return it. After it had been returned, the plaintiff sued for damages for conversion. The trial judge had given judgment for the plaintiff. The defendant appealed. On the appeal, the court held that there had been a conversion but that damages were nominal. Russell J. said at 731:
"The case must have occurred a thousand times, but the reason why counsel, who argued the appeal, were unable to cite any authority directly bearing upon the question, is probably that, until this case arose, there never was anybody wrong-headed enough to make such an accident the subject of an action at law."
There are, of course, the wonderful books by R.E. Megarry (later V.C., Miscellany at Law and A Second Miscellany at Law. They were published in the 1960's and are probably no longer available.
Master Funduk of Alberta, quoted above, was well known for his quips. On his retirement a volume was produced titled Fundukia: The Whimsical Wit and Wisdom of Master Michael Funduk. It is an excellent read. I like his quote from Re Laramie (2001), 25 C.B.R. (4th) 268:
Sometimes strong judicial language can evoke a smile, without its necessarily having been intended to be funny. Some excerpts from Wojnarowski v Bomar Alarms 2010 ONSC 273, per J.W. Quinn, J.:
and, less humorously for the parties: