Are Judges above the rule of law?
Justice Gone Awry

Who is the psychotic?

On June 23, 2012, writing for the Toronto Sun, lawyer Alan Shanoff posed an interesting question: Who pays when judges screw up? In his words, litigation is unpredictable because, "A witness may fail to appear, or lie, or forget key evidence. The judge may choose not to believe a witness.It's also possible one lawyer may be out-gunned by the other side's lawyer." His follow up question: "But who should be bearing the risks where judges make inexcusable errors?"

What prompted the lawyer to ask these intriguing questions is a 19 day trial before Justice McIsaac. At the commencement of trial the judge was asked to recuse himself, or step aside, for another judge to sit on the trial. The request was certainly reasonable. Justice McIsaac wife was a real estate agent and two of her clients had a connection to the case. Justice McIsaac even had prior “understanding” of the land dispute because he and his wife had a cottage property there.

What kind of moron do you have to be to not recuse yourself under those circumstances?

The wife's clients had "an obvious interest in the litigation." It was obvious Justice McIsaac ought to have stepped aside, but he didn't, and he put the parties through the wasted time and expense of a 19-day trial.

The liability of the trial judge for the massive legal costs was never addressed because judges have judicial immunity and bear no liability for their judicial errors. Litigants harmed by judicial errors should receive redress and compensation. According to Alan Shernoff, "Perhaps it's time for a Judicial Errors Compensation Board."

The errors of people like Justice McIsaac tend to be serial in nature, and beyond compensating their victims, it is time to make it clear to the people of Ontario that judges are not above the law. John Stuart Mill essentially described this common human flaw which makes men unfit for the bench when he said, "it is, by universal admission, inconsistent with justice to be partial; to show favour or preference to one person over another, in matters to which favour and preference do not properly apply."

While a three-member Court of Appeal panel found that Justice John McIsaac erred when he did not recuse himself from the trial, he was not held accountable for his error, and that is not acceptable.

Nontheless, the Ontario Court of Appeal appropriately noted Justice McIsaac's failure is stark terms; “Whenever a party takes the position that a reasonable apprehension of bias exists, the judge must weigh the submission carefully and contextually, taking account of all relevant circumstances,” said the decision by Justices Russell Juriansz, Harry Laforme and Edward Ducharme.

“The trial judge did not follow that course in this case. Had he done so, he would have given greater consideration to this wife’s involvement in the narrative, and he would not have concluded that the appellant’s claim for disqualification was based only on ‘a general sense of unease’ falling ‘well short of the threshold that justifies the order sought.’ ”

Instead, Justice McIsaac should’ve considered what an “informed, reasonable and right-minded person” might think about his ability to “concisely or subconsciously” fairly hear the case, the ruling said. “A reasonable person properly informed would only conclude that [the] connection to the property is deep and current and multilayered,” the appeal court wrote.

We have it on good authority that Justice McIsaac is clearly not an informed, reasonable and right-minded person.

Next: The difference between judgmental and judicious.

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