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Alberta appeal court criticizes trial judge’s behaviour

|Written By Arshy Mann

A recent case at the Alberta Court of Appeal attacks the lack of reasoning and procedural justice in a lower court decision.

While Tran v. Kerr concerned a lawyer’s involvement with a fraudulent real estate transaction, much of the actual judgment deals with the conduct of the trial judge.

Sou Kiang Tran, a waitress who spoke limited English, was suing Robert Kerr, a former lawyer who resigned from the Law Society of Alberta when faced with disciplinary charges. Tran had been paid $4,000 to be a “straw buyer” in a fraudulent real estate purchase while Kerr had acted as a solicitor for all the parties.

When the transaction collapsed, Tran was forced to pay Royal Bank $66,136. She then sued Kerr, claiming he was negligent, had been in a conflict of interest, and had not properly advised her of the risks of going through with the purchase.

The trial judge, Court of Queen’s Bench Justice L. David Wilkins, sided with Tran, but his conduct during the trial was concerning to the Court of Appeal.

“Respondent’s counsel fairly conceded on appeal that the trial had an ‘unfortunate tone,’ but this trial went further than that. It did not meet the minimum standards of procedural fairness expected in Alberta,” wrote appeal panel of Chief Justice Catherine Fraser and justices Peter Costigan and Frans Slatter.

According to appeal decision, the trial judge had failed to follow basic judicial standards.

“The reviewing judge did not make findings of fact and failed either to state the applicable legal principles or to explain how the legal principles applied to the facts before him or, in some cases, both,” says the decision.

Costigan points to one instance of the trial where Wilkins refused to even listen to arguments offered by Kerr.

Kerr had brought forward a motion a for a non-suit, which Wilkins refused to look at, citing his own experience as a real estate lawyer.

“There is plenty of evidence in front of me that would suggest that that standard had not been met,” said Wilkins. “I don’t even have to look at your brief.”

The Court of Appeal disagreed.

“All litigants are entitled to have their arguments considered, even if the trial judge suspects that the argument will ultimately be unsuccessful,” says the ruling.

Costigan pointed out that while Wilkins might have experience in real estate law, other judges didn’t share his personal experience.

“Other judges who had different career paths (e.g. they were labour lawyers, insurance lawyers, criminal law lawyers, etc.) would not have been able to take judicial notice of the standard of care of a conveyancing lawyer in Calgary in 2006,” says the panel.

Throughout the case, Wilkins had continually referred to the plaintiff as a “Cambodian refugee,” which the Court of Appeal also found to be problematic.

“There is no different standard of conduct expected of new Canadians, regardless of the circumstances that brought them here,” says the decision. “The suggestion that new Canadians are somehow less capable or less willing to make decisions and act in a way that is in conformity with the law is inconsistent with fundamental Canadian values.”

Because Tran had recently died and thus wouldn’t be able to testify at a new trial, the Court of Appeal disposed of the appeal on its merits instead of setting a new trial. It awarded Tran $39,681.60, 60 per cent of what the trial judge had awarded her.

  • Judicial malfeasance

    Colm Barry
    "... 60 per cent of what the trial judge had awarded her ..." Now obviously this is disturbing too. If the trial cannot be "repeated" and the underlying reason essentially is "judicial malfeasance" and the respondent claims he would have had reason to expect to win "all the way", then there should be provisions for liability of the state (who provides judges, sometimes less competent than others) and in this case might have given Tran what she asked for yet hold Kerr not responsible. In other words, there should be a "malpractice clause" in the law providing for these (rather rare - most parties don't die on appeal) cases.
  • Lawyer

    H C Blakey
    Something that has gone on many times in our courts. Sadly, many parties cannot afford an appeal. Problem lies in our current system of preferential appointments to the bench based more on political party accomplishments than candidate abilities.

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