As any lawyer who has appeared before Master Haberman knows, she does not hesitate to speak her mind.  And what appears to be on the mind of Masters these days is the fact that the government recently eliminated the use of permanent Registrar's for Masters (for those not familiar with a Registrar, they are, in short, a form of administrative assistant for Masters and Judges). In a decision in Covelli v. Sears, 2012 ONSC 2437, Master Haberman used a motion on the issue of Case Management to give a nice history of Case Management in Toronto, as well as a not so subtle shot at the lack of resources faced by Masters in Toronto these days.

When can Ontario (or any other province) hear a case that touches on parties or actions from outside of Ontario?  The Supreme Court of Canada has somewhat clarified this today, as it has released its decision in Club Resorts Ltd. v. Van Breda, 2012 SCC 17.  In short, the Supreme Court has adopted a modified version of the Ontario Court of Appeal's rebuttable presumption approach, that is designed to improve predictability, while still retaining some degree of flexibility to ensure fairness.

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Statistical TGIF at the Court of Appeal

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Before we get into some more detailed statistics in some later posts, one of the easier statistics to look at is whether cases are resolved differently depending on when they are heard. A well publicized study of Israeli judges indicated that their decisions depended on how close to a food break the case was heard.  While we can't drill down into that much detail in our numbers, we can look at it from a broader perspective based on the day of the week, or the month, that it was heard.  This still gives us some interesting numbers (including the fact that judges are much less likely to reserve their decision on a Friday, or right before vacation time).

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How Often Are Appeals Successful?

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One of the obvious questions a litigant needs to ask before starting an appeal is how likely are they to win their appeal?  In order to answer this question, a lawyer should start with a baseline (how often does any appellant win an appeal) and adjust based on the particular circumstances of each case.  So before we start talking about more detailed numbers (such as judge-by-judge numbers), we can start by looking at the court of appeal as a whole.  As you can see below less than 1 in 3 appeals is successful at the Ontario Court of Appeal.

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Court of Appeal 101 - Intro to Statistics

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As mentioned in my previous blog post, the Court of Appeal has released its 2011 annual report.  One of the interesting parts of the annual report is a statistical breakdown of the cases the court has heard over the past year.   While the statistics in the annual report are interesting, they are also very general.  As a result, I have looked back at the decisions released over the past few years to try to break down the numbers in a little more detail.  Before I post about the results of this review, this post is intended to give some more background on what I've done, and the techniques I've used to break down the numbers.  The more interesting stuff will come in the next few days.

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Court of Appeal 2011 Annual Report

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The Court of Appeal has released its Annual Report for 2011.  Much of the report deals with discussions about what has happened over the past year, including the departures of Justice Moldaver and Justice Karakatsanis to the Supreme Court, and the appointment of Justice Hoy to the Court of Appeal.  The report also deals with statistics about how the court decided cases over the past year, summarized below.

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The Dangers of Ex Parte Orders

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An "ex parte" order (an order obtained without notice to the other party) is one of the most powerful tools in the litigation arsenal, particularly where it involves a serious order such as an injunction or Anton Piller order.  Obtaining one, however, can be a double edged sword.  Judges typically do not like granting ex parte orders, obtaining and enforcing them can be an expensive proposition, and they are open to attack by the other party once they learn of the order.  As a result, a party needs to exercise extreme caution before even considering bringing a motion for such an order.

One of the biggest downsides is that many ex parte orders end up getting attacked, and often set aside, as a result of a lack of full disclosure.  As discussed below, the recent case of Levy v. Fitzgerald, 2012 ONSC 2105 is a further example of an ex parte order coming back to hurt the party that obtained it.

The AMC show Breaking Bad involves a mild mannered high school science teacher (Walt) who decides to start producing meth to secure his family's financial well-being before he dies of lung cancer.  In season 2, Walt crosses paths with a shady lawyer named Saul who [spoiler alert] gets involved in the drug manufacturing enterprise.  But this happens only after he tells Walt to pay him $1, so that they are protected by attorney-client privilege (called solicitor-client privilege in Canada).  A recent decision of the BC Court of Appeal in Donell v. GJB Enterprises Inc., 2012 BCCA 135 has given me an opportunity to do what annoying lawyers do best - pick apart a minor, inconsequential plot point in a tv show.


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