The Lawyers Weekly - September 3, 2010

Ontario’s top judge says some
court cases demand so much
they effectively finish off the
presiding judge.

Confessing to his own feeling at times that “somebody took out my intestines,” Ontario Court of Appeal Chief Justice Warren Winker says he can name at least a dozen judges whose careers ended after grueling long trials.

A tireless worker himself, the chief justice candidly shared some of his own more stressful bouts of overwork, including a legendary three-week judicial mediation in 2003 involving Air Canada, its nine unions, and 500 participants.

He managed to settle the case and help save 40,000 jobs, but the marathon mediation at a Toronto hotel took its toll on everyone. Some lawyers hurled cell phones and water bottles at each other, while one pilot smashed up a room and ended up in a psychiatric institution.

The then-senior trial judge
did not emerge unscathed
either.
“I went four or five days,
never got out of my clothes,…
never changed, never was even
out of my shoes,” Chief Justice
Winkler told judges attending
an Aug. 17 Canadian Superior
Courts Judges Association pres-
entation on “Staying Balanced:
Strategies for Judges.”
“I got finished that case,” he
recalled, “and I can tell you
exactly it was one month and 19
days after the end of that when
I didn’t get up in the morning
and feel like somebody had
taken something and taken out
my insides. I literally would
wake up in the morning and I’d
feel like somebody took out my
intestines—that’s how tired I
was.”
The chief justice told the
association’s annual luncheon
that Canada’s 1,092 federal
judges enjoy what workplace
experts consider the key com-
ponents of job satisfaction:
independence and pay
($271,400 a year for puisne
judges).
“We don’t have issues of well-
ness in respect of those two,” he
said. “We have individual issues
of wellness as people.”
To promote judicial “well-
ness,” the association has rolled
out its own 24/7 judicial coun-
seling program, including a
leading-edge “Judges Trial Sup-
port Service” which offers
judges seized with difficult
much of a meaningful refresh-
ment. You will stop listening to
music. You will stop reading
books. And people will talk to
you and you won’t hear them,
and…you will drive to work and
you won’t even remember 20
blocks you went through.”
These reactions to the

“Stress, sleep deprivation, fatigue, this goes with
the work that we do. This is stock in trade for
us. Criminal cases affecting the freedom of the
individual. I know I speak for all of you when I
say ‘I hear a case like that, I can’t sleep at night.’
Why? Because I just can’t. It’s too important.
Family law cases—the same.

court cases customized coping
strategies and confidential sup-
port from counselors.

But stress and worry are part and parcel of judging, Chief Justice Winkler said. “Stress, sleep deprivation, fatigue, this goes with the work that we do. This is stock in trade for us.

“Criminal cases affecting the freedom of the individual. I know I speak for all of you when I say ‘I hear a case like that, I can’t sleep at night.’ Why? Because I just can’t. It’s too important.

“Family law cases—the same.
Families in crisis. Every time I
hear one of those cases I…can’t
sleep. Why? Because I take it
that seriously. You do too. Pub-
lic law cases—the decision is
going to have an impact on soci-
ety in the future. I hear a case
like that,…I can’t sleep until the
decision is out. I worry about it.
Corporate cases involving how…
the world of finance is to oper-
ate…I can’t sleep after those
cases. Why? I am agonizing.”
Chief Justice Winkler noted
that the stress and exhaustion
can lead judges to display
impaired judgment or aberrant
behaviour in court. The warn-
ing signs that a judge may be
losing his or her way are clear.
“First you stop going and get-
ting exercise,” he suggested.
“You start to eat too much. You
may have an arguably bit too
extreme demands of some cases
are “not anything to do with us
as being weak, or not being able
to do these jobs,” he assured the
audience. “It just goes with the
territory. Because if you weren’t
that way I would say you
wouldn’t be taking the job ser-
iously. You can’t avoid these
things.”
He cited his own experience
as a trial judge in 1996 presid-
ing over Ontario Hydro labour
talks for six months. The high-
stakes case settled following an
epic mediation session. “I hadn’t
stopped working for 37 hours,”
the chief justice recalled. “I was
so disoriented I didn’t know
where I was. So my staff had to
take me down, with an arm
under each of my arms, put me
in a taxi and send me home.”
Less than a month later, he
launched into a one and a half
year civil non-jury trial. The
mammoth case, which generated
a 16,000-page transcript, thou-
sands of documents, and 1,650
pages of written argument,
pushed aside virtually everything
else in his life, Chief Justice
Winkler said. I “sat in court every
day. Went to the gym and worked
out an hour and half. Had dinner
at home. [Then] summarized
notes from the day before. That is
what I did every single day for a
year and half. Why? Because if
you don’t do that, at the end of a
long civil trial you are toast.”
The judge said he made it
through the case because of two
“pivotal” events. “One was a
15-minute phone call with a
retired Court of Appeal judge,
and the second one was a
30-minute coffee with a
super[numerary] judge in the
next chamber.”
Support from their families
and fellow judges is what
enables most judges to cope
with difficult cases, he sug-
gested. By contrast a “lack of
resources, or lack of support, in
the court system” for judges
“greatly exacerbates these prob-
lems,” he added. “It has a huge
impact on the judges when they
don’t have the resources and the
support to carry them through
these things.”
However the work ethic of
most judges, combined with
their “total commitment to pub-
lic service,” is what propel them
to “go back for more hits, and
more punishment, and more of
what this job entails day after
day after day,” he concluded,
despite the “emotional and
stressful and exhausting
[work], and obviously paying a
price somewhere at the end for
this.” 

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