On June 23, 2012, writing for the Toronto Sun, lawyer Alan Shanoff posed an interesting question: Who pays when judges screw up? In his words, litigation is unpredictable because, “A witness may fail to appear, or lie, or forget key evidence. The judge may choose not to believe a witness.It’s also possible one lawyer may be out-gunned by the other side’s lawyer.” His follow up question: “But who should be bearing the risks where judges make inexcusable errors?”
What prompted the lawyer to ask these intriguing questions is the 19 day trial before Justice McIsaac. At the commencement of trial the judge was asked to recuse himself, or step aside, for another judge to sit on the trial. The request appeared to be reasonable. The judge and his wife owned waterfront property in the same township. The judge’s wife was a real estate agent specializing in waterfront properties in the same township and two of her clients had a connection to the case, with one of them anticipated to be a witness at the trial. The two clients were daughters of a woman whose estate owned property abutting the property in dispute. The wife’s clients had “an obvious interest in the litigation.” It was obvious Justice McIsaac ought to have stepped aside, but he didn’t, and he put the parties through the wasted time and expense of a 19-day trial.
The liability of the trial judge for the massive legal costs was never addressed because judges have judicial immunity and bear no liability for their judicial errors. Litigants harmed by judicial errors should receive redress and compensation. According to Alan Shernoff, “Perhaps it’s time for a Judicial Errors Compensation Board.”
Indeed it is, and given the fact that the errors of people like Justice McIsaac tend to be serial in nature, why is this man still a judge? Is it not time to make it clear to the people of Ontario that judges are not above the law. John Stuart Mill essentially described this common human flaw which makes men unfit fotr the bench when he said, “it is, by universal admission, inconsistent with justice to be partial; to show favour or preference to one person over another, in matters to which favour and preference do not properly apply.
A three-member Court of Appeal panel found that Justice John McIsaac erred when he did not recuse himself from the trial in question so why is he still a judge?