In a decision released this afternoon, the Court of Appeal has taken a rather narrow view of the powers of lower court judges to\u00a0decide legal issues prior to trial.<\/p>\n
It is well-recognized, that motions judges may not decide factual issues, such as credibility, on motions for summary judgment. However, today\u2019s decision goes much further. It suggests that\u00a0motions judges\u00a0also shouldn\u2019t decide\u00a0questions of law<\/em>, unless the legal issue is already well-settled. But if the\u00a0applicable law\u00a0were so obvious, why would the parties need adjudication\u00a0in the first place?<\/p>\n In Romano v. D\u2019Onofrio<\/a><\/em>, Justice Todd Ducharme of the Ontario Superior Court had granted a motion for summary judgment, dismissing the plaintiff\u2019s claim. The action was one for defamation. The plaintiff, a third year law student at the time, was a member of an Italian social club. At the annual general\u00a0meeting of the club, the president spoke into a microphone and called the plaintiff a \u201cliar\u201d. (The defendant had admitted, for purposes of the motion, that he had spoken the complained-of words.) The law student sued the president of the club for damages in libel, slander and \u201cintentional infliction of mental suffering\u201d.<\/p>\n Justice Ducharme dismissed the plaintiff\u2019s action on three grounds:<\/p>\n The Court of Appeal was quite critical of the trial judge\u2019s approach. It held that he had improperly decided questions of law without an adequate factual record. For example, in relation to the question of whether speaking into a microphone at a public meeting constituted a \u201cbroadcast\u201d, within the meaning of s. 1(b) of the Libel and Slander Act<\/em>, the Court said: \u201cThe decision whether words spoken at a public gathering into a microphone constitutes libel or slander under the Act<\/em> is both novel and significant and involves an analysis not only of the microphone technology and perhaps other technologies for comparison and context, but also the policy behind the distinction between libel and slander under the Act<\/em>.\u201d<\/p>\n Likewise, the Court of Appeal said that Justice Ducharme had acted precipitously in finding that the plaintiff was not engaged or about to be engaged in an office or calling: \u201cAgain, as this finding required the motion judge to determine a novel question of law and apply it to the facts of the case, such a determination should not be made without a full factual record and findings of fact made by a trier of fact on that record.\u201d<\/p>\n Finally, the Court found that there had been at least a little evidence of the plaintiff having special damages and so, Justice Ducharme ought not to have dismissed the motion on the third ground either.<\/p>\n This last point involved a weighing of factual evidence. Normally, the Court of Appeal does not get involved in second-guessing findings of fact made by lower court judges, even on motions. But even assuming that the Court was justified in reversing Ducharme J. on ground #3, the rulings on the first two grounds are very puzzling. There is no indication that there were any facts in dispute. Rather, what the Court criticized was the motions judge having interpreted two sections of the Libel and Slander Act <\/em>and applied that interpretation to the undisputed facts.<\/p>\n But judges decide legal issues on motions every day, when there are no facts in dispute. It seems incredible to think that before interpreting the word \u201cbroadcast\u201d in a statute, a motions judge must now engage in an \u201canalysis of microphone technology and perhaps other technologies for comparison and context, but also the policy behind the distinction between libel and slander under the Act<\/em>.\u201d<\/p>\n What about the word \u201cautomobile\u201d, which appears in a number of statutes and whose meaning is often litigated in an insurance context? Must motions judges now undertake an analysis of automobile technology before interpreting a statutory reference to the word?<\/p>\n Judges are already prevented from deciding motions for summary judgment in the face of even far-fetched issues of fact. Now, they are being told that they should not decide legal issues on motions, unless the law is already clear.<\/p>\n It seems that the sorts of issues that can still be decided on motions are the ones about which there is no real dispute. Those tend to be the ones that don\u2019t get litigated in the first place.<\/p>\n","protected":false},"excerpt":{"rendered":" In a decision released this afternoon, the Court of Appeal has taken a rather narrow view of the powers of lower court judges to\u00a0decide legal issues prior to trial. It is well-recognized, that motions judges may not decide factual issues, … Continue reading \n