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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