What Is a Judgment?

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.


  1. And then there are brief enough reasons head “Endorsement” which are intended to be more than just a resolution of a contretemps between the parties. For example,

    Malamas v. Crerar Properties Corp., 2009 CanLII 61427 (ON S.C.) just reported on CANLII.

    Provisions of the various provinicial and federal allow a corporation to be sued after its dissolution. The action was commenced after the dissolution. A former officer and shareholder retained a lawyer to defend. A defence was filed. An application had been filed to reinstate. It was pending. While it was pending, plaintiff moved to strike out the defence on the basis the corp. had no capacity to to defend. The motion was dismissed.

    Matlow J held that, to avoid absurdity, the Ontario Business Corporations Act s. 242(1)(b) permitting an action to be commenced against a corp. after its dissolution has to be interpreted to allow the corp. to defend itself. He did not decide the issue on the narrow ground that the corp. was in the process of being revived. In essence, he read in the provision. He invited the Legislature to formally correct the problem.


  2. The issue that Simon raises (and which David illustrates) is important. I have another horror story.

    In an earlier comment to a post by Ted Tjaden on 24 June, 2009, I referred to the case of Shekhdar v. K&M Engineering and Consulting Corp., 2004 CanLII 19241, 71 O.R. (3d) 475 (ON S.C.). This case is spectacularly wrong — it’s been taken in two subsequent cases as authority for the proposition that “a forum selection clause will not induce a court to take jurisdiction if the action has no real and substantial connection with the jurisdiction”. As I mentioned in my original comment this statement, if it really were the law, would make a lot of careful drafters of all kinds of common commercial agreements more than a little anxious and expose us to international ridicule.

    The Court of Appeal emphatically reversed this decision, 2006 CanLII 17742 — as everyone knew it would — but only wrote an endorsement. The decision of the Court of Appeal was not reported and, while it can easily be found on CanLII, it has far less prominence than the original decision of the trial judge.

    It is clear that we have to take up Simon’s suggestion and consider carefully what is and what is not a judgment that will have precedential value. The law is too important to be created (or made) in these haphazard ways.

  3. Gary P. Rodrigues

    Simon, In my experience, the distinction between “endorsements” and “judgments” is not recognized in practice in Ontario.

    Government departments and courts distribute endorsements to legal publishers and newspaper outlets as if they are “judgments”. Canadian lawyers also expect to be able to find endorsements in the collections of judgments on the various online services. The selection of the endorsements for publication in the Ontario Reports could be said to be mere confirmation of that new reality.

    In effect, online services have become archives of decisions rather databases of “judgments” selected for use in applying the principles of legal precedent. The late Hugh Lawford believed that all decisions issued by a court should be included in the case law databases on the Quicklaw service. To be competitive, the competing publishers followed suit, fearing that a competitor would say that it is more comprehensive because it can demonstrate that it has more “judgments” in its databases, regardless of their value.

    In 2006, Quicklaw did discontinue the practice of including handwritten endorsements in its online databases, a practice that I believe continues to this day. It was an effort to distinguish wheat from chaff. While the members of the editorial board of the Ontario Reports can clearly speak for itself, one can safely assume however that they found something of value in the decisions that were worth drawing to the attention of the profession, even if they might properly be categorized as endorsements.

  4. Strange little puzzles result from omitting endorsements.

    Here’s a little case decided by the Ontario Superior Court of Justice: R. v. David, [2004] O.J. No. 1666, 2004 CarswellOnt 6483.

    LexisNexis has a note indicating that an application for leave to appeal to the Supreme Court was dismissed: [2006] S.C.C.A. No. 210. It also tells us that the judgment of the Ontario Court of Appeal was dated June 21, 2004.

    The worrisome thing is that if leave hadn’t been sought from the Supreme Court, you’d never know that the case had even gone to the Court of Appeal, because neither LexisNexis nor Westlaw has that decision. I haven’t been able to find even the Superior Court decision on BestCase. (I haven’t made the effort to go to the library to check Maritime Law Book, but if they have it, they get bonus points!) If the Ontario Court of Appeal registry were accessible from somewhere other than Queen and University, that would help, but it’s not. I did make the effort to go to Queen and University, and was lucky the file was there, because the fee for offsite retrieval is a hefty one.

    So that’s my little rant on omitting endorsements.

  5. Here is a comment from one who has a unique perspective, the former Associate Chief Justice of Ontario, the Honourable John W. Morden:

    As far as the law of precedent is concerned, there can be no distinctions in the precedential effect of a judicial decision that is based on the form in which it is cast and issued. Any attempts by courts to control the precedential effect of decisions would be wrong in principle. This is because of the fundamental principle of justice that like cases should receive like treatment. (This is the principle underlying the standard of correctness that applies to appeals from decisions on questions of law.) This is what gives law its integrity.

    A judge deciding a case knows, or should know, that his or her decision will enter into the fabric of the law and that future litigants will be entitled to rely upon its reasoning and principles if they are arguably applicable to their cases. This has a necessary and valuable disciplining effect on the judge. It would be quite contrary to principle if the decision were in a form that some authority said prevented it from becoming part of the law. This would be grossly unfair to the losing party and to any parties in future cases who thought that the decision was relevant and helpful to them.

    Bennion on Statutory Interpretation, 5th ed. (2008) says at page 855:

    “ Subject to the court’s general disciplinary powers over counsel and solicitors, such legal authorities as the party or advocate thinks fit to cite may be laid before the court. Here unreported cases should be conceded no less status than reported cases, since the authority of a judicial decision derives from the court not the report.”

    If the position is advanced “that the court drew distinctions between endorsements and reported decisions reasoning that endorsements were less formal and more for the benefit of the litigating parties only”, it is plainly contrary to the principle to which I have referred.

    How did “endorsement” creep into the terminology? A common dictionary definition of “endorse” is “to write (something) on the back [dorsum] of a document, paper, etc.”. This is undoubtedly the meaning endorsement had when I started to practise. The judge, in Weekly Court, for example, would sometimes endorse his (there was no “her”) decision on the back of the notice of motion or the record at the end of the hearing. Otherwise he reserved his decision to be released later, usually in the form of full reasons for judgment.

    In the Rules of Civil Procedure that came into force in 1985 the word “endorsement” appeared for the first time in legislation. Rule 59.02 provides:

    59.02 (1) An endorsement of every order shall be made on the appeal book and compendium, record, notice of motion or notice of application by the court, judge or officer making it, unless the circumstances make it impractical to do so. R.R.O. 1990, Reg. 194, r. 59.02 (1); O. Reg. 19/03, s. 10.

    (2) Where written reasons are delivered,

    (a) in an appellate court, an endorsement is not required;

    (b) in any other court, the endorsement may consist of a reference to the reasons,

    and a copy of the reasons shall be filed in the court file.”

    In the early days the endorsement usually comprised only the result of the motion or proceeding, e.g. “motion dismissed, with costs” or “order granted for the relief claimed in the notice of motion, with costs.” Then, in an increasing number of cases, endorsements included the reasons for the result and were set forth in a free-standing document that had no connection to the appeal book, record, etc.

    I say that for some time now the system has lacked coherence and logic. An endorsement is often a lengthy document of over 15 pages, hardly something that could be written on the back of a notice of motion. Whether or not the decision is in the form of an endorsement is entirely a matter for the judge writing the decision. He or she can label it “Endorsement”. I think that some order can and should be brought to bear on the process and I shall return to this.

    I do not believe that there ever was “any formal distinction[s] between endorsements and decisions.” It may be that in the early days, as a practical matter, the intended audience of an endorsement was the parties only but this did not, as a matter of law, have any bearing on the legal status of the document. Further, I have never understood endorsements to be less authoritative than full reasons for judgment. They, of course, can often be more difficult to use, because of their brevity, in future cases, but this is a different matter.

    It follows from this that I do not think that the editors in the Ontario Reports have re-examined the theory of precedent. You can look at past volumes in the Reports where endorsements, so labelled, have been reported. See, for example, Volume 89 O.R. (3d) 519 – an 18 page endorsement and 89 O.R. (3d) 681, a five page endorsement. Further, I have just spoken to the OR editorial staff who confirmed that there was not, from an eligibility to report point of view, any distinction.

    Further, I suspect that there are past reasons that were rendered in the form of endorsement that have been reported and the editors did not use “endorsement” in the report.

    The Shekhdar decision, referred to by Angela Swan, is an example of the serious breakdown in the reporting system. When I was an editor of the Ontario Reports there was a clear rule that I think has always been in place that if the reasons for decision in a proceeding had any bearing on an earlier decision in that proceeding, (e.g. dismissing or allowing an appeal from that decision) that had been reported the new reasons had also to be reported. Clearly in the Shekhdar case, this rule was seriously overlooked.

    Getting back to the matter of the use and status of endorsements, I think that reasons for decision of any length should be called reasons and the term “endorsement” should be dropped, including in cases where the decision had been endorsed on the back of the record. The word “endorsement” should, of course, continue to be used in the rules where the context is quite different.

    The quality and utility for use of reasons should not flow from the label put on them by the author but should be readily determinable from the reasons themselves. I think that this something that the two Superior Courts in Ontario, after some consideration, should do something about.

    I cannot say that this is a matter of high priority but I do know that the profession is mystified, in any case, by the distinction between reasons and endorsements. There is no good reason why this should continue indefinitely.

  6. The ONCA has just proven the validity of Mr. Morden’s comment. This brief decision appeared on the Court’s “decisions” website this morning. The reasons are headed “Appeal Book Endorsement”. Look at para. 3.

    Tradedge Inc. (Shoeless Joe’s) v. Tri-Novo Group Inc., 2009 ONCA 855



    [1] This was a one issue matter – did the landlord unreasonably withhold his consent to the assignment to extract higher rent from the proposed assignee?

    [2] The application judge was alive to the relevant legal principles (see para. 7). He made a finding of fact that the landlord’s sole interest in refusing to consent was to secure a higher rent because the current rent was well below market (para. 38). That finding was open to him. His conclusion (para. 39) was based on his application of the law to his findings of fact. The appeal should be dismissed.

    [3] Our disposition should not be taken as accepting the proposition set out in para. 38 of the reasons to the effect that a demand for an increase in rent can never be a reasonable response to a request to an assignment of a lease. Whether that request is for a “collateral purpose” and, therefore unreasonable, will depend on the entirety of the circumstances.

    [4] The appeal is dismissed.

    [5] Counsel advised that they have agreed that Tradedge should have its costs before Graham J. of $10,000 and costs before Lauwers J. of $4,000. So ordered. Tradedge should have its costs of this appeal fixed at $6,500, inclusive of GST and disbursements.