The Lawyers Weekly - June 1, 2012

Split
Continued From Page 9

cuts often fail, and said that
“bitter experience has shown
that searching for savings in
time and money by chopping
litigation into little pieces sim-
ply does not work.”
The Court of Appeal judgment
stated that the possibility of over-
lapping evidence between both
trials in this case was a serious
concern—and a reason why
many requests for such orders are
denied in other cases.

Counsel for the defendant, Anthony Friend of Bennett Jones in Calgary, told The Lawyers Weekly via e-mail that this decision was “an opportunity for the appellate court in Alberta to discuss generally what have been referred to as the ‘foundational rules’ under the new Alberta Rules of Court. The Court specifically clarified that the tests to be applied by the courts when considering applications to split trials or

‘Proper role’ of counsel is to
present case against judge

Douglas
Continued From Page 1

ise of a search for the truth,” the committee said in a ruling issued May 15.

The 41-page decision demarcates for the first time, since the CJC revamped its discipline procedures in 2010, the respective roles and responsibilities of independent counsel, outside counsel, review panels and inquiry committees.

The committee stresses that
“the proper role” of independent
counsel is to present, in a fair and
impartial manner, “the strongest
case possible in support of the
allegations against the judge based
on the gathering, marshalling and
presentation of evidence and the
related submissions.”
Independent counsel may not
always have been clear on that
point, the committee said. It sug-
gested that “the case for removal” of
Ontario Superior Court Justices
Ted Matlow and Paul Cosgrove in
separate previous public inquiries
“may not have been fully presented”
because independent counsel in
those cases (not Pratte) “may not
have fully appreciated that their
role was to act as an advocate to
present the case against the judge.”
The committee also went on to
forcefully reject Pratte’s submis-
sion, which it viewed as “effectively
[asserting] that independent coun-
sel can pre-empt the inquiry based
on independent counsel’s opinion
of either the quality of the available
evidence or the legal effect of such
evidence, if accepted.”
The committee insisted “it does
not fall within the role of independ-
ent counsel to attempt to shut
down an inquiry based on his or
her opinion about the weight of the
evidence on a balance of probabil-
ities. Still less should this occur
before all relevant evidence has
been adduced [to the committee].
To do so amounts to taking over the
role of the Inquiry Committee.”

Pratte
Block

The committee described its
own role as weighing the evi-
dence and submissions and
reaching “its own conclusions
about the judge’s conduct.”
Justice Douglas is on a paid
leave-of-absence pending the
inquiry’s determination of two
as-yet undisclosed complaints.
The complaints reportedly relate
to sexual photos taken by her
husband that he has admitted
posting on the Internet without
her consent or knowledge.

The committee ordered Pratte,
of Borden Ladner Gervais, to
“forthwith” provide its members
with a copy of one of the two com-
plaints against Douglas and ancil-
lary material, together with the
report of a CJC review panel. After
examining the complaints and
allegations, the panel determined
last July that “that the matter may
be serious enough to warrant the
judge’s removal from office.”
The inquiry committee
emphasized “the committee must
know what the Review Panel
considered the case to be in order
to assess the recommendations of
Independent Counsel.”
Although the committee was
struck last September to investi-
gate the allegations, it has spent
more than six months without
any documentation, leaving its
members, including three chief
justices, without any explanation
of what they were doing or why
they were doing it.

sever issues have not been changed by the introduction of the new Alberta Rules of Court, including the foundational rules,” Friend said.

The plaintiff’s evidence on liability was already heard at trial while this matter went to appeal. The balance of the trial is scheduled to resume later this year. n