Legal Ethics: Misleading the Court

There is advocacy, and then there is deception. Deceiving counsel should be called out, named, and shamed.

Unfortunately, it is the very lawyers that are so adept at misleading the court that are the hardest to unmask.

Judges should look out for the following red flags to know that something sinister is happening:

  1. Only one party has filed material.
  2. Important documents are intentionally omitted to mislead the court. That way counsel can try to avoid being sanctioned for expressly lying.
  3. Counsel says that the other party “should have known” that a certain point would be argued based on the pleading or some other vague document.
  4. Counsel blames opposing counsel for their failures instead of owning it.
  5. Counsel pretends like something was sent, when it never was provided or was provided at a different time than alleged.

Instead of letting the halo effect take over, I encourage judges to look critically at the counsel before them. Often times, counsel who appear to be shining knights can be the dirtiest of them all. These lawyers just leave no trace.


  1. Is this a good time to remind lawyers of our duty to report misconduct?
    Rule 7.1-3(d) of the LSUC Rules of Professional Conduct states:
    “Unless to do so would be unlawful or would involve a breach of solicitor-client privilege, a lawyer shall report to the Law Society, . . . d) conduct that raises a substantial question as to another licensee’s honesty, trustworthiness, or competency as a licensee;”
    Not that reporting another lawyer to the law society is ideal – it appears that we have a duty to do so.

  2. Reporting another lawyer would seem to be the sine qua non of profession self-regulation.

  3. There is a lot of dirt out there. And reporting is unfortunately an imperfect solution.

  4. The countervailing view is that there’s much less dirt out there than people here appear to be suggesting and those who are suggesting otherwise should stop spreading what is, at best, tabloid level gossip. I see no need to add what the worst would be. What I will add is please “put up or keep quiet”. I’d have preferred to use the more common version of that phrase but I’d rather not be accused on “incivility” or worse.

  5. David, when I sit in on hearings, I observe mostly very professional behaviour, even where SRLs are involved. But usually the SRL is presenting a case that is doomed to fail all by itself.
    I personally have witnessed every trick in the book played on me and maybe a few that
    aren’t even in the book yet. But I’m too busy digging myself out from under it to
    present my own data.
    But even if there was much less dirt, how much dirt is really acceptable at all?

  6. Robert,

    No level of dirt is acceptable.

    Take my word or not – bearing in mind I spent 40 plus years as a civil litigator, 35 of which where in Toronto – that judges look very closely for improper conduct by counsel. It’s cynical but true that there’s no value in small unethical actions, too. It’s more likely than not that you’ll be caught and that’s the end of any trust judges will have for you for a long time.

    But most of what the losing side usually claims was sharp practice – implying improper practice or, more broadly, dirt, isn’t dirt at all when one puts everything in context. It’s the simply the other side knowing the very harsh rules of the game better and taking advantage of them.

    A “gap” in the rules isn’t a loop hole. It’s just a gap. In some cases, of course, the “gap” is covered by implication, so it’s not a gap at all. But where there is a an absence of a rule and the situation isn’t covered by implication – extension – of an existing rule, then whatever falls into the gap is legal.

    As a judge of the ONCA once put it, not so long ago – I’ll paraphrase somewhat, only because I can’t remember the exact wording or the case and am too lazy to spend the 5 minutes to find it – in the absence of any law on a point, it must be assumed that the law is exactly as it is supposed to be.

    The point that most SRLs and too many lawyers don’t understand (or refuse to understand unless it’s in their (client’s benefit) is that everything IS legal unless it’s prohibited. That means what you call a trick may well be a trick, but it’s a legal trick. End of story. Full stop.

    For a lawyer to go “easy” on an SRL just because she/he is an SRL, absent instructions to act that way from the client, will get the lawyer in trouble if the case doesn’t go the way the client does. I think it’s also often the case that, by the time a case goes to court with an SRL, the other litigant so detests the SRL that the latter isn’t going to get a break (unless it’s a broken leg.)

    Now, each lawyer has to decide for herself and himself whether he or she ought to do everything legal that he or she is able to do, but if one isn’t going to do everything legal to defend a client, then you have to get the client’s permission or get off the case. Those are the only options.

    Last, but not least, thank you for the acknowledgment which tends to cast doubt on the gossiping I’ve heard from lawyers who should no better. (Of course, we might assume that they weren’t accusing SRL’s of that sort of bad behaviour but only their colleagues, right? Because the SRL is, as you’ve said, so swamped that he or she doesn’t have time to be dishonest, even if so inclined? :-)?


  7. Correction:

    … but if one isn’t going to do everything legal to in the representation of one’s client, not just as I wrote “to defend a client” …

  8. Well David, since you’ve mentioned your 40 years of experience as a litigator I’ll note my 16 years as an SRL.

    I came into the system as naïve as anyone could be. At that point I had yet to even stumble upon the term “the rule of law”, which I misunderstood when I first came across it (I thought it meant something like “the rule of rules”).

    With 40 years of litigation under your belt you can claim to have some mastery of the vast landscape of rules that constitutes the legal system. The reason I am now able to say that the system is rigged and that the term “the rule of law” is really just a convenient sales and marketing slogan, is that I was able to focus on certain precise questions that no other SRL had ever realized were significant. And they were questions about the meaning of specific terms used in legislation. The term that first caught my attention was the hybrid Latin / English “prima facie case”. It has been used now for approximately 24 years to rationalize summarily dismissing cases brought almost exclusively by SRLs in British Columbia’s labour law regime. The MLA’s who debated the provision (on November 26, 1992) demonstrated that they had no idea what the term meant, and I’ll wager that even today most lawyers would embarrass themselves if they were asked to explain what it means.

    Try this exercise yourself. Try writing out an explanation of what it means that you could offer to a judge in the hearing of any case in which the use of the term is relevant. Then grab a copy of The Law of Evidence in Canada and see what John Sopinka and his co-authors had to say about it in the first (1992) edition (a discussion that remains unchanged in the subsequent editions).

    I am pursuing additional legal language issues but that one alone warrants a book, or at least a comprehensive essay, about the institutionalized abuse of language.

  9. Chris, when you lose your job at Burger Shack, you go apply at the next one down the street, no need to invoke the magna carta.

  10. Mr. Semenoff,

    Who are you? Are you a lawyer? Are you an SRL? I’m just curious.

  11. It would take a lot of bias in my favour in the form of scholarships and bursaries before I could become a lawyer, assuming I could pass the LSAT. I am an engineer doing time in the civil justice system since my father died with a disasterous estate plan designed by a too clever lawyer.

  12. Chris, your difficulty with the concept of prima facie case goes beyond the statutory interpretation. 1) The common law itself struggles with the onus of proof, and the BC Legislature’s bona fide attempts at reforming the rules of court have been significantly ignored (or perhaps not appreciated) by the judges . 2) There is a rebuttable presumption (in practice) that the SRL is going to lose, and you really have to lead with your best evidence up front and nobody will pay attention to anything else you say until you do that.

  13. Mr Semenoff

    Anybody who honestly acquired an eng’g degree should be able to score high enough on the LSAT for the number to cross some worthwhile law school’s bottom line and become irrelevant. Also the LSAT isn’t pass fail but just a numerical score. In any event, even if the LSAT is sill required for mature students n Canada – once upon a time that was people who had been out of school for at least 5 years and over a certain age, I believe- the LSAT score isn’t a gatekeeper.

    I’ll respond to your statement about “rebuttable presumption”. You’re probably right because, in most cases, the SRL’s, even if their case has merit in the abstract, haven’t brought the minimally necessary proof to court, or they’ve brought so much hay with them that the needle of key evidence can’t be found. So, they lose because they don’t know what’s required of them and didn’t make it possible for the judge to help, within the limits of what an impartial judge is allowed to do.

    Despite judicial lack of patience, sometimes, if the SRL has the evidence and throws it against the wall (so to speak) judge’s will sort the chaff out where possible and the SRL will win. But sometimes it’s not possible given the limitations on judicial time and resources.

    The common law doesn’t struggle with the onus of proof in civil cases. It’s more likely than not, or, if you will, probable. I realize it’s sometimes put as a percentage; i.e., something more than 50% but that doesn’t mean one adds up varies values to get to over 50%.

    What you might be struggling over is “how much believable evidence do I need to convince the judge or jury that my version of the story is the version that is more likely than not true. The answer to that is “as much as is needed in any particular case” supported in the appropriate way.

    If your story is that you were late for court because you were kidnapped by small, green, lizards from Centauri and subjected to … etc., you’ll need more evidence (data) to satisfy the judge of the truth of your story: pictures and videos might not be enough, even if attested to by, say, Tom Cruise. You might need the Pope plus something more.

    On the other hand, if you’d said, on a number of days not so long ago in Vancouver, that you were late because Deadpool took your bicycle (so to speak), the testimony of the movie director (plus a signed photograph of DP himself, with a time stamp on it) should be enough.

    From the outside, both stories have a certain air about them. But, the second could well have been true and you’ve come armed with plausible evidence it is.

    And, of course, if you said that you were late because you were taking the judge’s son or daughter to school, then that judge would probably believe (especially if you were on his or her payroll) but but shouldn’t be hearing your case.

  14. Robert,

    I won my first engagement in court as an SRL after a two day hearing facing counsel for three powerful political entities. But my real education began when they challenged that result in the Court of Appeal. I later discovered that the judge – Carol Huddart – who wrote the BCCA decision had some years earlier addressed a private audience, which might well have included some of the lawyers I faced, with a speech entitled “Know Thyself: Some Thoughts About Impartiality and Administrative Decision-Makers From an Interested Observer.”

    The title contains what one might characterize as a Freudian slip. She said “interested” rather than “disinterested”. The audience she had addressed was the BC Council of Administrative Tribunals. The previous year the judge they had invited was Ms. Huddarts’s good friend Beverley McLachlin.

    None of the SRLs I’ve encountered online have had the benefit I have had of challenging the administrative law regime. It’s an entirely different universe from family law, property law, etc. It’s an Alice in Wonderland world. That’s why I developed an intense focus on language and its abuse. One of the interests I was pursuing in 2015 was the possibility of leveraging a discipline called “forensic linguistics”. So I contacted some people who claim to be experts in that field. One of them gave me the names of two purported forensic linguists associated with the two local major universities (UBC and SFU). On reviewing what I could find about them I decided not to bother contacting them at that time. One of them had earned three degrees in linguistics and an LLB and was an associate with a very small, narrowly focused law firm. Then last June she left that firm and became a Vice Chair at the tribunal that has been my principle adversary throughout my career as an SRL. Her record of decisions doesn’t suggest that she has any more facility with language than any of her colleagues.

    This past January I challenged that tribunal again with a freedom of information request for copies of certain decisions the enabling statute says they are obliged to render in writing and ensure are published. I knew they hadn’t been published, but what I then learned is that apparently none of them were ever rendered in writing. So I referred that issue to another tribunal – the Office of the Information and Privacy Commissioner. Last month I filed another petition for judicial review challenging the OIPC’s summary dismissal of my complaint. The legal establishment wanted to believe that my success in a judicial review in 2003 was beginner’s luck. Their refusal to accept that loss and endeavor to deliver some actual due process is what motivated me to start asking the fundamental questions.

    The literature on the English common law presents it as a noble tradition. Whatever the truth of that claim, the judges these days are in my view just overpaid bureaucrats.

  15. Law Societies should require security from lawyers as a condition of litigation practice. They should investigate and compensate the victims of abuses and then go after the lawyers responsible. Judges are indeed limited in what they can do. And with profession independence on it’s last legs we arguably need judicial independence even more.
    I honestly do not understand why the public cannot be given this level of protection.
    The result of not having this kind of mechanism is manifest : lawyers are
    profiting by enabling fraud, quasi-fraud and all manner of unconscionability.

  16. Mr. Semenoff:

    Law societies do: it’s called error and omissions insurance. There are also the various compensation funds which cover error not covered by e&o insurance. The disagreement you and I will have is over your view of what amounts to “abuse” resulting in a situation justifying “compensation”. As that is a discussion that, in my view, is pointless for me to have with you, and even if it’s not likely to be far too time consuming – the note to which I’m responding is sufficient proof, for me, of that – I’m leaving this thread.

    Cheers and good luck in your journey throug the legal system


  17. The problem that Mr. Cheifetz declines to discuss, but that everyone else who’s posted here has at least peripherally pointed out, is the complete absence of a reliable system for FINDING error or ethical lapse – ethical lapses being, in my view, simply deliberate errors. Judges don’t see nearly all of what lawyers do, and couldn’t respond to it all if they did.

    Law is a bit unique insofar as how well error can be (a) concealed, and (b) of arguable relevance.
    It’s not like medicine, where if the knee doesn’t bend post-knee surgery, the error can’t be hidden and it can’t be argued that it didn’t really matter. Even at that, patients have a hard time holding doctors to account.

    Given the adversary system, someone always has to lose a case. How often do these little infractions make the win/lose difference? It’s a bit like aggressive driving in traffic. If everyone gets there alive in the end, what does it matter who ran a few lights or nearly caused some accidents?

    And that’s just lawyer error. When you throw judicial error into the mix, law really is the wild west in terms of ethical enforcement and error detection.

    For all that a code of conduct, rules, and an enforcement system exist, I still think law is uniquely ill-suited to self-regulation. I’m inclined to look toward something like what the IIROC (Investment Industry Regulatory Organization of Canada) does; as I understand it, they scrutinize every. single. transaction. That’s what quality assurance looks like. Anything else is just wishful thinking.

    The day I see a news story like this one about law, I’ll believe there’s some real intent within law to self-correct. Until then, everyone’s just making out like bandits while wringing their hands with regret about what has to be done to keep the party going.

    Kind of like BC real estate agents, until recently.

  18. Ms Litzcke

    I don’t decline. I disagree. I do so because of the principles of the “LAW” as it now exists in Canada. So long as lawyer-client privilege means what it currently means, we have the best possible system the legal system permits: the lawyers’ obligation to be ethical.

    Yes, much of the legal system we have is adversarial. Feel free to design a bette system. (There is supposedly one in the Star Trek, or as it eventually became, for me, at least, the Star Drek universe, but that’s fantasy and, in any event, nobody ever explained how it works: well … other than Q being infantile, Picard having Earl Gray tea, number 1 not doing number 1, at least on stage.)

    If you don’t like the current legal system, you know where the ballot box is. You might not get the support of the majority of the profession, though. On the other hand, or perhaps the third hand, there may well be enough people in the country who hold the harder on the lawyers view of what to do about lawyers expressed by Dick the Butcher in Henry VI, or something somewhat less final.

    Bear in mind, too, that I’ve expressed no opinion one way or the other, in this thread, on what I’d prefer the legal system to be. (Hmmm, I might have said, elsewhere, even on Slaw, that I’d prefer the version Frank Herbert created in the Dosadi Experiment but then I suspect you wouldn’t and, in any event, I used to be a goalie.)

    BUT, on the assumption you’re new here: I’ve made it clear any number of times that just because some conduct IS legal for a lawyer to do doesn’t mean that lawyer OUGHT to act that way.

    If you are unwilling or unable to read between the lines of that statement, then perhaps you should take some time to consider on why that’s so.

    I’m out of here.

    “Cheers” would be a bit mealy-mouth of me, in the circumstances, so I will go one step higher on the ladder with

    Kind regards,

    David Cheifetz

  19. To the universe of readers, here, other than Ms. Litzcke and all other lawyers who know this, even if they’re not prepared to admit it.

    But that anybody who gets on a horse, such as Ms Litzcke and others are, at the moment, about lawyer regulation and unethical lawyers.

    The nature of the system, as it stands now, limits what can be done about the problem, even where there’s good reason to believe it but there’s no proof other than belief.

    Any form of a supervisory system that allows others to look into a lawyer’s file necessarily intrudes into the lawyer-client relationship. We have the presumptions of innocence in the criminal law (and all protections for people who are innocent until proven guilty, not just presumed to be) and the similar in effect risk of non persuasion on the plaintiff in most civil proceedings. There are circumstances under which that relationship can be intruded, ultimately all based upon the principle that, otherwise, the administration of justice would be brought into disrepute. But it’s a very difficult balance and, so far, the Supreme Court has severely limited the extent to which anybody – so that would be the law societies, too, or any other outside regulator, is able to look behind the curtain of privilege.

    If you don’t like it, folks, change it. You know where the ballot box is.

    But, be very very very careful what you wish for. You might get a version of Donald Trump. Or worse.

  20. The second paragraph should have been:

    But that anybody who gets on a horse, such as Ms Litzcke and others are, at the moment, about lawyer regulation and unethical lawyer should take into account before riding it too hard .

  21. Mr. Cheifetz, you make some interesting points. But despite them, yes, I would undertake to develop a better legal system. It would actually be kind of a piece of cake, and I say that with some expertise in organizational design. One would simply need to lower the ramparts the system has been able to build around itself contra political, economic, and public forces, and put it back into touch with its host society in a meaningful way. That is how the legal system evolved throughout its lengthy and august history, and it is only since it has been able to buffer itself and develop in the direction of institutional self-service that there has been a divergence between performance and need. (There may always have been a gap, but now there is a divergence – even as the hysteria about access to justice ramps up, ironically).

    It’s not strictly a regulatory task, as I had hoped to convey by including the judiciary in my comments, and it’s not about delving into lawyer-client privilege. It’s about being determined to respond when things go wrong. And if you are determined, then you have a variety of options. In law, ideally I think one would build in system-wide capacity to respond to error where it occurs. What exists now, in contrast, is a system in which errors both become entrenched and are rewarded. Clearly, no one in the system is determined to improve, because if they were, things would be improved. Not “improving, maybe, hopefully, after this next round of reports.” Improved. Already.

    I do not delude myself that this can be solved at the ballot box. Not because people don’t vote for legal reform, because they do – in fact they have, many times, I’m sure. But with those buffers in place, the legal system has been able to proceed in majestic oblivion to the public’s response to its behaviour AS WELL AS being able to effectively neutralize any initiatives taken by the politicians so elected. In this, the legal system is identical to the public education system. It has become management-proof, and thus ballot-box-proof.

    It’s interesting to see how often comments about the legal system are taken as being attacks on lawyers or critiques “of law.” These are distinct and interrelated entities. As the original post intimated, changing lawyer behaviour requires behaviour change by other elements in the system. This makes it a system design problem, not an ethics problem. You don’t get behaviour change unless you change the set of forces and incentives acting on people.

    Heather’s call for “calling out, naming, and shaming” is a natural response, but not an effective deterrent when the system rewards the behaviour. As with a speeding driver, who is rewarded for speeding by making it to his or her destination sooner, being honked at is not a sufficient deterrent.

    The law is a phenomenal field of endeavour, and preserving the richness of its intellect is a major motivator for me to continue to try to talk to the legal community about organizational design improvements. I have tracked the field of education through its degradation, which has been steady ever since it became buffered from user feedback via compulsory school laws. It is a shame to see law going the same route, but the worst thing is, the cost to society will be even higher. We can recover from losing control of schools if we have functional courts. Without functional courts, however, we cannot recover from anything.

  22. Ms. Litzcke,

    Good luck is all I can say. Leave it that I’ve had this discussion, or versions of it, on almost a yearly basis since I was called to the bar with people both within and without the profession. It won’t surprise you that the range of views on what is or isn’t ethical is extremely wide. But, that shouldn’t be surprising. There’s no particular reason, anymore – even if there was once one in the idyllic past – for a people making it into and through law school to be any more or less ethical than people making it into and through stationary engineering courses. There’s no valid investigation for ethical “merit”, whatever that may mean, as part of the entrance requirements for any law school that I know of. (We’d have to disagree to disagree, even more strongly, if you were to suggest, for example – I doubt you are – that a certain wannabe law school’s “covenant” is evidence of ethical merit.)

    We’ll also have to disagree on what you describe as a piece of cake, unless you mean only the design of the system or the theoretical development. I’d mention, for example, just Kant on the one hand and Rawls on the other, not to mention the various theocracies – including the one that could exist south of you, based on the legal system supposedly existing in the best selling book in the western universe. That’s assuming the Potter books, or was it 50 Shades? havden’t taken over.

    By the way, designing legal systems were part of what was tried in Second Life, as I recall it, by many groups. My recollection is that the legal systems of each group were quickly gamed by those more able than others to manipulate the software / UI; that is, the laws of the particular universe.) But the theory is hardly the issue. It’s the implementation If you don’t know the aphorism attributed often to Yogi Berra about theory and practice, look it up. You undoubtedly know the SCC’s Blank decision. I remain of the view that the problem is ultimately and necessarily, a matter of ethics – that, by the way, necessarily includes competence.

    Me? I think the idea you’ve expressed in the first paragraph is utopian in the extreme, and is more likely to invite in “Dick the Butcher” and “Jack Cade” than “Hercules” and “Solomon”. You want proof of that, look to the south of you and consider what just happened.

    Or, as somebody said at a lecture I heard recently, the KEY problem with the legal systems in developing problems is judicial salaries: that is, judges aren’t paid enough to limit, as much as practical, the need to take bribes to survive. One can’t eliminate the inclination, of course, and controlling it depends on the judge’s fear of consequences if she or he is caught.

    Now, in our system, judges are paid enough that, at least, most of them don’t NEED to take bribes depending, of course, on what their financial condition was before they became judges. Also, I doubt I’m the first to have said this but, a failing law practice is not a good ethical reason for seeking an appointment. Again, while in theory it’s not possible to pay good judges too much for doing their job, in practice it is. It’s a version of the joke that goes something like this: Q: If I pay you X (a large amount of money) will you do Y. Answer: Yes: Q: Well, I don’t have that money I have only (a very small amount). Will you do Y for that amount? A: No, what sort of person do you think I am?

    If you’ve heard the joke, you know what the retort is: A: We know what you are. We’re negotiating the price.”

    Finally, as to whether I made any good points, am I to take it that you know what’s in the Dosadi Experiment legal system I referred to and if so are you planning to include any part of that in your system? I’d very much like to see your design if that is so. I’m sure I could suggest a slew of people who should be offered the immediate chance to become judges and lawyers in that system (very large grin).


    David Cheifetz

  23. Gaps in statutes do get filled by the courts, despite what the popular textbooks say. I’m going to address David’s point about that now, since he’s no longer reading this…

    In Goodrich v. British Columbia (Registrar of Land Titles), 2004 BCCA 100, the court used the legislative intent behind the Power of Attorney Act, to read down to nothing a provision of the Land Title Act. The LTA provided that an enduring power of attorney can’t be used to transfer land 3 years after execution. The elderly donor allegedly was in poor health and could no longer live by herself in the place and the attorney was trying to have it sold.

    The court of appeal thought it entirely inconsistent with the purpose of the power of attorney act to prevent that and ordered the registrar to conduct an inquiry as to whether anything sketchy was afoot with the transaction and to allow it otherwise, despite the lapse of 3 years.

    For the court to have done that, they had to have thought that legislative supremacy (or competence) is rebuttable because there was clearly no mistake in the provision; Or they also had to have read a lot of common law into the POA, which is really more gap than substance – it having been enacted only to repeal the common law that agency terminates on the incapacity of the principal.

    I would go even further and say that they had to have implied a principle that land should not be kept out of circulation indefinitely – that the ordinary meaning of the LTA would effect sort of a restraint on alienation.

  24. Corrupt judges -impossible. A judge who would take a bribe is looking to get out of it because he/she doesn’t love it, and would retire as soon as possible. But in Canada, that seems to be rare.

  25. Robert,

    You shouldn’t jump to conclusions as to what I’m out of. Reading is one thing. Responding is another. Wasting my time is a third. (As the late Freddy Prinz said in the first year of the TV show “Chico and the Man”, before complaints about stereotyping resulted in the line vanishing in this form “Ees not my job”. On the the other and, thought, taking the time to help people who are clearly want to, and are trying to, learn is yet a fourth.

    Some people’s comments are worth responding too, because they show an honest attempt to understand what’s going on. And, it ought not to be said that that they ought to know better because the contents of the post, itself, are proof of that.

    As yours merits responding too I will. Unfortunately, the situation in the SLAW readership at present must be that too many people who could usefully respond simply will not because of the aggravation they will get from too many other readers.

    As you’ve probably concluded, I usually don’t care about that situation.

    Whatever “popular textbooks” you’re reading aren’t books that I’ve ever heard of; I doubt that any law professor has ever heard of; and candidly, are likely books that should be sold only in supermarkets with warnings to not be sold except to somebody over 18 and accompanied by his or her parents.

    That’s because EVERYBODY in the legal system knows that gaps in statutes DO get filled by judges. I assume that you meant judges by “courts”.

    The argument amongst people who theorize about the origins and workings of legal systems is how to justify and explain the fact that gaps in legislation are filled by judges (whether elected or elected). Some theorists state that that role is an inherent part of any legal system so that the judges have discretion to do what is required; meaning what’s right for the system in the particular instance; and the answer isn’t one necessarily one implicit in the existing decisions and rules. In that case, the judge is in some sense making new law. That’s EXACTLY part of what the judge’s role is.

    Other theorists claim the correct answer is always necessarily implicit in existing rules so that “all” the judge has to do is sort through the noise to determine what the correct answer is.

    Whether or not your view of the case you’ve mentioned is correct or not is a separate question that I’m not going to discuss with you. Don’t take that personally. I’ll simply say this. You have and, are, of course, entitled to your own opinion as to whether the decision was correct. I see no indication that leave to appeal the BCCA decision was sought. If it was, it wasn’t granted. Also, I see no indication, on my quick check of a relevant database, that the decision has since been overruled or even criticized by judges or academics. That area of law wasn’t part of my practice. However, the database I checked would show hits (other cases, critical articles or comments, etc. if they existed AND, of course, if the data was entered into the system and my search algorithm adequate. Take it please, that the database I checked is so designed that one would have to be nearing death (metaphorically) to be unable to check or the information I looked for.

    Now, that doesn’t mean that you are wrong and everybody else’s conclusions are right. For all I know, the parties decision to not appeal as entirely tactical and they settled afterwards – the case was sent back for a new trial – and since then it hasn’t been to anybody’s advantage, in a new case.

    On the whatever number hand – the third is always appropriate if one knows the reference -, Occam’s Razor.


    David Cheifetz

  26. Since I’m unable to edit the comment:

    “On the the other hand and, thought, taking the time to help people who clearly want to, and are honesty trying to learn – based on what one reads in their messages – is yet a fourth.”

  27. “Corruption” is a very flexible term in this context. It isn’t limited to taking bribes. A judge who is biased against a party is, in the sense under discussion, corrupt because the judge is acting contrary to the principles of the system. In the same sense, a judge who knowingly disregards existing law binding on the judge would be called corrupt by some. Others would disagree, claiming that the law the judge disregarded wasn’t good law because it was immoral; or if the law in issue was an earlier decision, that it was wrongly decided; or, it wasn’t a valid law at all because, for various reasons, the legislation wasn’t valid.

    Again, all of these qualifications are concepts in the system that somebody who has learned the system – usually by spending a few years in law school, though once upon a time by working for a lawyer and reading law, learns. Or fails law school and goes out into business and becomes very rich. Or not.


  28. Robert,

    Since my database search did produce one hit, this is what you would have found had you asked any law librarian in any BC court house library. It’s a passage from a 2010 decision of a BCSC judge:Lindberg v. Lindberg, 2010 BCSC 1127

    “[44] The applicant relies upon the history and purpose of the enactment and amendments to the RAA, the Power of Attorney Act and the PPA . The effect of recent enactments was discussed in detail in Goodrich v. British Columbia (Registrar of Land Titles), 2004 BCCA 100 (CanLII), and is further described in Robert M. Gordon et al., The 2008 Annotated British Columbia Representation Agreement Act, Adult Guardianship Act and Related Statutes (Toronto: Thomson Carswell, 2008). The latter text succinctly summarizes the purpose of the legislation at 11-12:

    Both the Representation Agreement Act and the Power of Attorney Act provide for adults to plan for the possibility of a catastrophic and incapacitating event in their lives such as a debilitating brain injury or for the onset of a degenerative physical disorder such as AIDS or Alzheimer Disease. Adults may enter into representation agreements with others who are willing to represent them, to follow their wishes and/or instructions, and to make prescribed substitute decisions on their behalf. As well, intellectually or physically disabled young people who have been cared for by family members during their youth and who become adults may be able to enter into representation agreements with family members or other people of their choice. With such an agreement in place there is no need for the court to appoint a committee under the Patients Property Act or a personal or property guardian when the new Part 2 of Adult Guardianship Act comes into force.

    [45] As noted in Goodrich, amendments to the legislation have followed upon the work of the Law Reform Commission and papers prepared for the Attorney General of British Columbia addressing the problem arising from the common law’s reluctance to give enduring or continuing effect to powers of attorney following the onset of debilitating illness or dementia. The legislative intent of the amendment to the legislation appears to be to give effect to individual autonomy enduring beyond the onset of dementia.”

    I’ve drawn that case to your attention as an indication that result of Goodrich seems to not have been appealed.


  29. David, it seems as if that case is being quietly ignored or distinguished.
    But it is an important case about how law gets made.
    The court delivered a real slap in the face to the legislature by effectively
    throwing out an otherwise well drafted provision.

    It maybe important that the Attorney General was a respondent on the
    appeal so that the lack of a constitutional question notice might be regarded
    as a mere irregularity.
    Or the appeal court found leeway in the definition of “valid” (as in valid power of attorney) to mean that it might still be usable to effect land title transactions despite being invalid, but only after an inquiry by the registrar to ascertain the bona fides of the transaction.

    This case stakes the outer boundary of how far courts can go to rewrite legislation,
    and where lobbying effort has to take over;

    A recent article from “The Australian Professional Liability Blog”

    really shows, I think, how radical reforms (as have been done in Australia)
    and as Karen suggests, are really not preferable to incremental tweaking.
    They still have the problem that we have in that the necessary disincentives to abuse are not
    in place. Lawyers there face only a $5000 fine for getting caught.

    So I still believe that the government just needs to be told what the legislation needs to be,
    and for specific problems to be identified.

    I was contacted by a person from the legislation department of the LSBC in response to an FOI request last year , who told me that I needed to review all the material on their website. There is certainly seems to be an embarrassment of riches there if specific problems with their regulatory system is what one seeks.

  30. Not having the advantage of a university education I won’t bother trying to present an academic argument about the meaning of the term “corruption”.

    However, like most people, I think there are occasions when on running into it I’ll recognize that’s what it is. And as there is no country, Canada included, that is free from it, I see no point in citing the record in any other country.

    For now I’ll just relate, without too many particulars, what I found on the first of three notable occasions in my dealings with our so-called justice system.

    First, a certain statute provision – the key one in most of the litigation I’ve pursued – was vigorously debated by the members of the B.C. Legislature in November 1992. I’ve put the debate online – – with certain text highlighted. It is clear in the debate that the provision contained a crucial term – twice actually, in two successive lines. The House never revisited that provision, but somehow the term was subsequently removed. One of the key individuals responsible for that “amendment” later “stepped down” (I’m quoting from another Hansard record) exactly two weeks after I shared with a former Attorney General what I found. It’s perhaps also worth pointing out that that provision purportedly defines a “process”.

    There is of course a great deal more to that story. I’d be delighted to hear from anyone who thinks they have sufficient understanding of legislative processes and can suggest how what I uncovered there wasn’t an example of corruption.

  31. Chris, have a look at Omar’s recent article about causation. He very concisely addresses some key problems about administrative tribunals that I suspect are relevant to you, and are live issues – specifically, what happens when the adminstrative body runs out of money.
    If you’re dealing with unions at all, consider also they have won the constitutional right to bully. So you can’t really fault the courts for failing to apply logic where none can exist.
    I don’t see anything in the Hansard other than “prima facie” highlighted. It suggests you have to do more than plead, or make hypothetical arguments, you have to bring what you’ve got plus a plausible explanation for any gaps in your evidence.

  32. Robert,

    No, Goodrich doesn’t say anything new about the manner in which law is validly made in British Columbia, in Canada, or in the Commonwealth, or for that matter, anywhere else that might matter in this discussion.

    It seems to me that the reason you believe this is that you, for whatever reason, don’t quite understand (or if you do understand you aren’t willing to accept) the Canadian law on point.

    If I may use an analogy from your expertise, it’s as if, in an engineering issue governed by classical physics – say the construction of a bridge between Vancouver and Victoria – you claimed, during a lecture on eng’g principles, that it could be readily and cheaply done because of some principle that you’ve recently discovered, through your own investigations, which happens to be contrary to one of Newton’s law’s. I expect the lecturer, if he or she was polite, would refer you to a leading eng’g text.

    I’ll do the equivalent: Peter Hogg “Constitutional Law of Canada”. You can probably find very inexpensive paperback (aka student) copies of any one of the various editions.

    If you want to read what should be clear, even to those not academically trained, explanations of how law is made in the common law systems – of which Canada is one – you’ll find them in the online Stanford Encyclopedia of Philosophy. If you want to read usually understandable, even by non-lawyers and academics, texts on the philosophy of law – i.e. including what “law” means and how law is made, in common law systems, you could do far worse than to start with HLA Hart “Concept of Law”, Dworkin “Law’s Empire” and Rawls “A Theory of Justice”.

    On the other hand, you could probably learn just as much of what you need just from reading Hogg and I suspect, spending a few hundred dollars to buy publications on the these subjects offered by organisations such as the Continuing Legal Education Society of British Columbia. The line to its website is You’ll find a catalogue listing somewhere on the site. CLE-BC has extensive material.

    You are, of course, entitled to say what you believe ought to be the law and how the law ought to work. But, perhaps, you should consider this. What would you saw about somebody who stood at, say, the Canada Place pier in Vancouver claiming the bridge I mentioned could be built if eng’g firms could just be told that X, Y and Z are true about how to build such bridges, when you know that none of X, Y and Z are true on Earth (or any part of the universe governed by the same physical rules as Earth.)

    To me, you are that person, albeit in law’s world, not engineering’s.

    I realize that you may disagree. That’s your right, of course. But the bridge will still fall down (unless, of course, you find a thousand huge Rocs to hover in place, above, holding ropes in their talons to support it and, of course, the requisite number of turtles to buttress it from below).

    I’ve said enough, I think.

    As I said before, good luck. You will need it.

  33. Well, I’m willing to go a little way at least down any detour.

    I learned what I needed to know about legislative process relatively easily. (I concede though that there are related topics of consequence that I certainly won’t claim to be satisfied I’ve adequately mastered).

    I actually contacted Peter Hogg some years ago regarding one very interesting and consequential point. And the reply I received seem to concur with my view.

    The question was who owns the statute book (the existing collection of statutes in any jurisdiction). It seemed to me obvious that the laws belong to the people, and that for my purposes this meant that the enacting body – the legislature or parliament – is the custodian of the statute book. Unless someone is prepared to say otherwise I think there’s no rebuttal to that proposition.

  34. I said there are 3 ways to build a bridge based on 3 bridges that already exist, and I picked the one that hasn’t ever fallen down to date.
    You might want to look up “stare decisis” and “red herring” in that online encyclopedia,
    which looks to be an excellent reference by the way so thank you for that … -Robert

  35. I had a theory that law is the product of power struggle in the modern democratic
    system of one vote per citizen. I called it the cynical theory of statutory interpretation.
    I eventually found a reputable article reference last year in the CED taxation (of all places) that
    seemed to fit the bill, and then lost it. Living under a bridge tends to do that to hard drives.

  36. No, Robert, you didn’t. You only think you did. That’s because, with respect you know just enough law think you know more than you know. I know the meaning of “stare decisis” and “red herring” in this context, far better than you have displayed you do. As to stare decisis, read this:

    You, unfortunately for you, in this context, have even less authority than the little peckers referred to in that case.

    You wouldn’t think of operating on yourself to remove your appendix, would you? Unless, of course, that was the only recourse you had to survive. It’s remarkable how many otherwise intelligent people understand that knowing a bit of medicine doesn’t make them doctors. But it’s not the same with law.

    It’s remarkable, but said.

    It’s time for somebody else, here. to waste his or her time trying to help you because, unfortunately, you hear only what you want to hear. And that problem, Robert, is why most lawyers who spend any amount of time here don’t bother getting into any form of discussion in the comments, unless they know the person on the other end.



  37. There may be something in the work of the late Elinor Ostrom that helps to generate useful discussion of various behavioural issues within the legal system:

  38. Jason Nykolaychuk

    I was recently self represented in a child support hearing as I could not afford a lawyer. In dealing with the first Justice the other party continually claim I was not disclosing information. I then brought in ALL files I had for years and gave to the other partly in front of the Justice. We returned to conclude matters a few day later. The Lawyer for the other party then again claimed he didn’t have full disclosure. At this point the Justice became irate and took a five minute “timeout” to calm down as she was so angry with this lawyer. The Lawyer did manage to get the matter put over which led to a different Justice to resolve the matter. When being concluded with a next Justice this lawyer proceeded to deliberately lie to the new Justice and her that the previous Justice took this time out in anger at me for not disclosing which was totally false and misleading. The new Justice gave her decision against me and what the law states and cited that “she had no doubt the prior Justice was mad at me” as the defendants council stated. Is the fact that he deliberately mislead the new Justice ethical? And Is there anything I can due since I’m past the appeal time?

  39. To whom this may concern:
    I am sending this letter and praying for the public to know this is a serious issue.

    Divorce can be messy and costly as most know. Say no kids involved and a 50/50 partnership of a business is involved and a home filled with assets and childhood memories.

    After 5 long years and never once seeing a Majestrate one person lost everything as the other spouse lied, stole, sold and embezzled a business. All being allowed by Attorneys! No one stopped the spouse with all proof given. A very bad Attorney did not fight for his Clients rights and then was given a slap on the hand by the Law Society while a business and home were lost. Then to have TWO more costly Attorneys no help as well. A Business was literally stolen and moved to a new location! The spouse was caught red handed liquidating assets. Of coarse nothing was done by Attorneys which led to a profitable Business being seized for pennies. This spouse was given authority to stay in a home per Interim Order that went into foreclosure TWICE and had to be sold in days for over a $100,000 less or to be Auctioned! Note not one Attorney would ratify Interim order although theft, embezzling, no full disclosure of finances, no return of personal items to other spouse just non payment of all bills in home and business. No preservation of assets as court order let alone Family Property act allowed to be swept under the rug. The spouse in charge did not ay CRA/TAXES and now liens on other sposuses personal vehicle. Although embezzling spouse sold her vehicle and has never been forced to show bill if sale as it was a marital item!

    Now even though ALL allegations were proven false there is a spouse whom has been left basically homeless, penniless, never received one red cent of business monies let alone personal assets. Can you imagine having your Childhood collections taken? Can you imagine your deceased Mother and Grandparents priceless items given to you TAKEN from you? Probably not and thus has happened and been allowed under Attorneys watch!

    Can you imagine over $1,000,000 dollars from a once profitable business not proven as well as the belongings in a 3600 square foot home not accounted for? Well, this has happened under Attorney watch!

    All allegations were proven that the spouse whom was granted everything per Interim order have been sold (documentation given to Attorney’s), misuse of funds, Transferring monies into various accounts and never proven what monies used for and the list can go on but, again against the Interim order set by Justice Little. Three case conferences that were never followed by embezzling spouse or forced by her Attorneys! Case Conference (Malady) is all for Women and would not even hear case on every conference.

    I know this is happening to more than one spouse out there and something needs to be done!

    Did I mention the Embezzling spouse also put down one Family cat and sent pictures with a smiley face! Then another Family cat put into a freezer and literally frozen in resting position and no ONE would do anything about animal cruelty! Pictures were given to Attorneys as well and dismissed!

    Now to be FORCED settle for pennies and the spouse who proved all allegations gets no assets. Not even inheritance items as Attorney says well nothing to fight for anymore 5 years later! Also, an Attorney whom was slapped on the hand by Law Society put a lien on spouses assets! How can that be allowed considering under his watch HIS Client lost everything!

    Please the courts need to know what is happening and how Attorneys are NOT fulfilling their ethical duties to protect their Clients. This story is very TRUE and hundreds of documents to prove all. Shows the court system is not protecting people and are very biased to men.