C.A.: “Don’t Let Sleeping Judges Lie”

In Leader Media Productions v. Sentinel Hill Alliance Atlantis Equicap Limited Partnership, the Court of Appeal confronted an issue that a number of lawyers of our acquaintance (including some in our office) have encountered: what to do when the trial judge falls asleep?

This case involved an appeal from a decision of Mr. Justice William P. Somers. Counsel for the defendants had never tried a case before. In argument before the Court of Appeal, five affidavits were filed that said that the trial judge had frequently fallen asleep during the trial, albeit only for brief periods.

Counsel for the defence consulted with more senior lawyers at her firm while the trial was progressing and a tactical decision was made not to confront the trial judge about his slumbers. Instead, the defendants elected to “wait and see how things played out”. In the result, the defendants lost and it was only on the appeal that the issue surfaced.

(There did not seem to be any dispute on the argument of the appeal, as to whether the trial judge had really been asleep.)

The Court of Appeal rejected this ground of the defendants’ appeal. It noted that there was little authority on this issue, but reviewed some Australian jurisprudence and an Alberta decision in coming to the following conclusion:

While appellants’ trial counsel was not experienced (this was her first trial), the record discloses that she did consult with senior litigation counsel in her firm about the judge’s inattention. Together they made the decision to do nothing about it at the time but to, as respondent’s counsel put it, “roll the dice”.

Counsel was obliged to bring the trial judge’s inattention home to him at the time. Not having done so, and having decided to wait and see what happened, they cannot now raise that inattention for the first time as a ground of appeal on either a substantive or contextual basis.

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