Judging the Judge

 Sep 29, 2018 9:00 PM
by Marcel Strigberger

     I spent a few hours watching the historic Judge Kavanagh Senate confirmation hearings. As there have been more than enough political opinions expressed on the event, I thought I would challenge myself and see if I could come up with nonpolitical observations. I did make a number of which I shall list the top 10. I will however still express my opinions, nonpolitical of course.

     1 Dr Christine Ford likes to drink Coca Cola. During her testimony she guzzled what looked like a half litre of regular Coke. Opinion: It may be the real thing but Coke is not too healthy for you.

     2 Judge Kavanaugh said he likes beer. Opinion: If he drinks Molson Canadian like I do, then I’d say he’s credible.

     3 Judge Kavanaugh often was tearful. Opinion: It’s good to see a judge cry. In my 40 + years of practice judges have often made me want to cry.

     4 Senators Grassley and Feinstein are both octogenarians. Opinion: They’re old.

     5 Dr Ford’s lawyer Debra Katz’s eyeglasses kept on slipping off her nose. Opinion: She should go to Costco like I do when that happens and get an adjustment.

     6 Dr Ford says she has a fear of flying. Opinion: She should never fly with United Airlines.

     7 There is a Democratic senator called Whitehouse. Opinion: That’s funny. I doubt there has ever been a president called Capitol Hill.

     8 There is a Republican senator from Arizona called Flake. Opinion: This is interesting given than he must be one of few flakes in the desert state.

     9 There is a Republican senator called Crapo. Opinion: This name provokes comments. I won’t make any.

     10 The Democrat committee members pressed the judge hard on entries in his high school yearbook. Opinion: Yearbook entries can come back to haunt you. In my yearbook post I said when I grow up I wanted to live in Edmonton.

      I trust I have stayed true to my intneded goal and not been political. If I have, please speak now. Don’t wait 6 weeks to raise the issue.


One Notwithstanding, Please

 Sep 17, 2018 12:00 PM
by Marcel Strigberger

    We have enjoyed an interesting few days in Ontario, notwithstanding.  As Oliver Twist said, "I would like some more, please. " 

     Some of us like Premier Ford’s invocation of the notwithstanding clause to override the court's ruling regarding the government’s decision to cull the Toronto City Council, and others don’t. ActualIy I see great potential for this type of clause. In fact it should be extended from the public sector to the private sector. There is no reason why the Legislature, simply a group consisting of elected officials, should have exclusive dibs on a notwithstanding clause to trump a judge.

     I was in private practice for over 42 years. I just hated it when a judge ruled against me. It was always my fantasy to be able to do something about it for my clients. Like most of us, I would lose my share of cases just because one mortal, kind and wise as he or she may be, did not like my client’s case. To add insult to injury I would nod my head and feel compelled to say, “Thank you Your Honour.”

    This did not make sense to me. I always wondered if there is something we can do about this problem and now I see possibilities. I am considering campaigning for legislation extending the notwithstanding tool to lawyers.

    How would it work your ask? No problem. It can be underwritten by an insurer, like BICO, which covers adverse costs awards. You have your trial, say a personal injury case, and the judge dismisses your client’s claim. You then stand up and reach into your briefcase and whip out your notwithstanding policy and shout out proudly, “ Ah Hah! Not so fast Your Honour. Notwithstanding your decision, which is of dubious merit, we have notwithstanding coverage. I set aside your findings.

   Not only that but I have “notwithstanding plus” which means I can substitute my own judgement.  I therefore hereby award my client $50,000.00 in damages.”

   I doubt the judge would thank me for this revelation but that’s OK. I’m easy.

   Sounds great to me. And it would certainly enhance the justice process.

   It would even work with a jury trial. How gratifying would it be after a jury kicks your catastrophically injured client in the pants, to stand up and say, “ Ta da!!! Thanx but no thanx. Notwithstanding a decision on my client’s future financial welfare by a cluster of folks who never spent a minute in law school, I hereby override your senseless decision. You don’t even know what pain a fractured pinky can cause. And though I am not permitted to say it, notwithstanding, now I can say this in front of you loudly and clearly:  The defendant is fully covered by insurance in this case. So long and enjoy your next double double.”

  Thinking about this possibility elates me.

  I beleive Premier Ford has opened a can of golden geese. Let’s hope they do not fly south for the winter, notwithstanding.



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