A Judicial Finger Wag

Here is what Justice Corbett of the Ontario Superior Court of Justice had to say recently in Sri Guru Nanak Sikh Centre Brampton v. Dhadda,

[1] It is not open to anyone involved in the plaintiff to dispense with the law because they think they are wise and know what is best. “Tradition” is not a basis for ignoring the law.

[4] The plaintiff has a long sad history of conflict. And this just has to stop. It is an embarrassment: the plaintiff is an important religious, social and cultural institution. The conflicts have been riotous, often petty, and are concerned with issues of control, and not the high-minded principles cited as justifications for this lawless behaviour.

[5] Snowie J. stated, roughly ten years ago: a “more business-like approach” to managing the affairs of the plaintiff would be in everyone’s best interests. Methinks Her Honour spoke too softly. No doubt she was moved by the fact that this is a religious and charitable institution, and the members and directors are unpaid volunteers. Apparently her message did not get through to everyone.

[11] Some of the defendants have engaged in gross misconduct in the conduct of this litigation. For them apparently, the ends justify the means. It is offensive that some defendants should perjure themselves so blatantly in their evidence. The ends do notjustify the means. Through their misconduct, these defendants have, in the end, only discredited themselves.

[12] Litigation is not some childish game. It is serious process of conflict resolution. It is not acceptable to lie under oath or to falsify documents to try to win a lawsuit for control of a temple.

[13] I understand that these are emotional issues for the parties. Some of the defendants have played key roles in founding and building the plaintiff. Together with some of the plaintiffs, they have built a wonderful and vibrant institution. But they do not own it. And these defendants’ past good deeds and leadership do not justify their misconduct.

With an opening like that, you know the facts have to be juicy. And they are, if not also complex and convoluted, and filled with an emotion.

But there are also some general principles of advocacy worth gleaning from the judgement too,

[290] A factum is written argument. That does not leave it open to deliver a written polemic. There should be a “facts” section of the factum, that underpins the argument. It is currently popular to blend facts and arguments. In my view, when this is done properly, it makes it easier to grasp the argument and evaluate the arguments. Where, as here, the recitation of the facts is the argument, and is not referenced to the evidence, the factum fails in its task to persuade. It creates suspicion in the mind of the judge. And so every controversial statement of fact must be checked to ensure its accuracy.

[291] Conclusions, or inferences, are of no value when stated baldly.

[292] Good advocacy is not the presentation of conclusions of inferences in a patterned argument. That is necessary, of course, but that is the easy part. Good advocacy is the careful selection and organization of facts that lead to the conclusions or inferences that then feed to a particular conclusion. The absence of a clear recitation of facts from which inferences or conclusions might be drawn has left it to the court to review the evidence to determine if there is evidence in the record to support the broad assertions in the defendants’ factum.

And if that doesn’t have you reading the case for more, I’m not really sure what will.

Comments

  1. My favourite paragraph:

    [150] As a side-note here, the court was bemused by the defendant’s reliance on something called the Charities Act in support of its argument that there had been financial mismanagement. There is no such legislation in Ontario. The legislation relied upon by the defendants is a statute enacted by the legislature of Prince Edward Island.

  2. Self-represented litigants? Or just a typo for Charities Accounting Act that the judge was by that point not willing to overlook kindly?

  3. Not self-represented. The defendants had a lawyer.

    [289] The point here is not to scold counsel, who is extremely capable and experienced. …

    [294] I repeat that the purpose of these comments is not to comment [on] counsel personally. I know that time was limited for counsel here, and I expect there may well have been financial constraints. Nor is it to moan about how much work was involved in reviewing this case to prepare comprehensive reasons. The judge gets paid, whether it is a short or lengthy undertaking. This is an important matter for the parties and for the local community. My point is this: the style and nature of argument, the arguments raised to justify the defendants’ behaviour, and the absence of substance to much of what has been said for the defendants creates a strong impression that the deliberate tactic here was to obfuscate, perhaps in the hopes that would lead the court to throw its hands in the air, conclude that it is “too much of a muchness” to decide on a motion, and send the matter off to trial, years hence.

    I thought of a line from Hamlet as I read Justice Corbett’s explanation of what his purpose wasn’t.

  4. “[11] …The ends do not justify the means” –nice to have *that* judicial precedent sorted out, at the least, so one good thing came of this apparent mess.