Chatting with Angela this morning about judgments, and then the Ontario Reports undermines my certainty about my prior views.
One expects that such issues as what is a judgment, and what is an endorsement, would have been determined years ago, when the basic rules of precedent were laid down by common law courts.
However, this morning’s copy of the Ontario Reports has me wondering. There are 80 pages of reported judicial decisions in part 10 of volume 96 of the Ontario Reports, Third Edition.
However, four of those decisions from the Superior Court totalling 61 pages are nominally endorsements. I had thought that the court drew distinctions between endorsements and reported decisions reasoning that endorsements were less formal and were for the benefit of the litigating parties only.
Of course, in areas like insolvency, Farley J. remade the Canadian law under the Companies Creditors Arrangement Act almost entirely by handwritten endorsements (often difficult to read) on the back of the pleadings.
Of course, the digitization of legal information, and the fact that services like CanLii can as easily report an endorsement as a formal decision further undermine any formal distinctions between endorsements and decisions.
Do we need to re-examine our theory of precedent? Clearly the editors of the Ontario Reports appear to have done so this week.