Apparently Off the Record
has been compiling the Judicial
Chutzpah Index (JCI) off and
on for 25 years. I have no
independent memory of this,
but on Jan. 23, 2004 I seem to
have written here, “When we
first surveyed the use of ‘
chutzpah’ 18 years ago…” The use of
“chutzpah” by judges, I meant,
in Canada and the U.S. As 2004
dawned, database searches had
revealed a total of 15 Canadian
usages, 11 of them having
appeared by 2001.
Finding only two more Can-
adian usages during 2004 (“Off
the Record,” Jan. 28, 2005), I
assumed that Yiddish cool no
longer was. So, evidently, I
stopped looking. But this new
year’s my Uncle Gene sent me
an e-mail, subject: “The mean-
ing of chutzpah.” It told of “a
little old lady” who “sold pret-
zels on a street corner for 25
cents each.” An office worker
would give her a quarter a day
but never took a pretzel. After
three years of this, he left yet
another quarter when the
woman called after him,
“They’re 35 cents now.”
It was a sign, the turn of the
year apparently being the JCI’s
conventional triggering date
and all. A of the case law
revealed 11 new judicial “chutz-
pahs” between 2005 and now,
eight from the Ontario Superior
Court, one from the Quebec
Superior Court (as “hutzpah”),
and two from the Tax Court of
Canada.
Mind you, 11 hits is probably
not the impressive gain it sounds,
unmitigated gall being the new
default setting for public conduct, where once it was the standard translation of “chutz-
OFF THE RECORD
JEFFREY
MILLER
pah” — never mind R. v.
Ablacksingh, in which Gans J.
seems to distinguish the two:
“This elaborate scheme, by which
Ablacksingh…directly and
indirectly received millions of
the defrauded dollars, was not
only brazen in its execution, but
demonstrated [he] had the
unmitigated gall, if not chutzpah, to flaunt his new found ill-gotten wealth in the face of those
he was ostensibly ripping off:”
[2007] O. J. No. 162 (Ont. S.C. J.).
Still, the new data reveal that
judges remain fond of the defin-
ition cited by Leo Rosten in his
Joys of Yiddish (1968). Spence
J. recalls it in Husein v. Chatoor
(No. 2), [2005] O.J. No. 5715,
commenting on Chatoor’s
request for costs for delay of
proceedings. The fact the oppos-
ing party had complained of the
delay first, while seeking to lift a
stay of proceedings Chatoor
successfully defended, reminded
Spence J. of “the story of the
young man who, having killed
his parents and upon being con-
victed of their murder, asks the
court for mercy because he is
now an orphan — this being the
very definition of the Yiddish
word chutzpah.”
In Miotto v. The Queen, 2008
[2008] T.C.J. No. 107, Bowman
C.J. seems to say “chutzpah” is
commensurate with “nerve,” but
brings Rosten in for good meas-
ure: “It requires a certain
amount of nerve for the direc-
tors to challenge [Canada Rev-
“…the young man…,
having killed his
parents and upon
being convicted of
their murder, asks the
court for mercy
because he is now an
orphan — this being
the very definition of
the Yiddish word
chutzpah.
enue’s] assessments by criticiz-
ing the bailiff and the CRA for
being remiss in failing to find
such items when the directors
themselves were responsible for
their disappearance into
another company.…It is some-
what reminiscent of the classic
example of chutzpah where a
person convicted of murdering
his parents asks the court for
mercy on the ground that he is
an orphan.”
A year after Husein, Rowe
D.J. “neglected to inquire of
Russell Gill — interpreter —
what the Punjabi word is for
‘chutzpah,’ a Yiddish word bor-
rowed by the English language
meaning shameless audacity,
cheek or boldness. That concept
is usually explained in anecdote
form in the context of someone
who has killed both parents yet
pleads for the mercy of the court
on the basis he or she is an
orphan.” His honour was hear-
ing an appeal by 39 seasonal
workers against a finding that
they had worked fewer hours
than they’d claimed for purposes of employment insurance.
Just before rueing his failure to
nail down the Punjabi for
“chutzpah,” Rowe D.J. found
that one of the applicants had
lied under oath, collected EI
while working, and “indicated
he thought strawberry season
started in the third week of
July.” The applicant’s “
explanation for providing these silly
responses was that his brain
was not ‘functioning at that
time:’” Parmar v. M.N.R.,
[2008] T.C.J. No. 164.
In 2004 I noted that Master
Julian Polika of Ontario’s
Superior Court seemed “to have
taken over from Federal Court
Justice Frank Muldoon in regularly sniffing out brashness at
the law courts.” Sure enough,
the data now reveal that Polika
J. remains chutzpah master of
Canadian jurisprudence, having
fathered three new citations, or
27.3 per cent of all new usages.
Master Polika continues his
tendency to apply the term to
counsel. In 2005, though a
fellow master had granted a
telephone conference to arrange
a case timetable, Master P.
found the conference request
“smarting of chutzpah,” given
that a timetable already had
existed: Griffiths v. Canaccord
Capital Corp., [2005] O.J. No.
1136. That same year, the master took exception to an attempt
to re-institute an action where
the litigants had exchanged correspondence acknowledging its
discontinuance as they discussed their positions on refiling the claim. Counsel anyway
“sought to rely on what at most
was a technicality, namely my
See Miller Page 24
LSUC ensures practitioners have no-cost options
CPD
Continued From Page 2
annual CPD requirement, LSUC
communications advisor Susan
Tonkin advised The Lawyers
Weekly that self-study activities,
“such as reading program
materials or listening to a pro-
gram replay alone do not qualify
for CPD hours. However, listen-
ing to or watching a program
replay with another lawyer or
paralegal and then discussing
the program with them, does
qualify for accredited CPD. This
fulfills the interaction require-
ment, as long as there are two or
more participants.”
Asked how the law society will
monitor off-site CPD participa-
tion via webcasts or teleconfer-
ences to ensure the lawyer or
paralegal actually participates for
the duration of the program,
Tonkin said compliance will be
monitored “through annual CPD
audits—as part of a practice
management review or a para-
legal practice audit — and by ran-
dom selection. A total of 500
random CPD compliance audits
of lawyers will take place annu-
ally, while 25 CPD compliance
audits of paralegals will be con-
ducted each year.
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