COPIED FROM LEXOLOGY.COM
[Blogger's Note: I have previously quoted from my contract (Statement of Work) how the Defendant Web-developer, and I, signed below the short paragraph, stating 'That both parties are legally bound by the Contract.' That the contract indicates the sum total of both parties responsibility. Nothing more, nothing less.
The first paragraph of the following article sums up the very basic, 'actual' objective,' of what a court of law, represented by its Masters, Judges - and purportedly its legal representatives, i.e. lawyers, are there, in principle, to adhere to.
Too many times, we discover, this turns out NOT to be so. Rather then a strict adherence to the Rules and process, Cases are allowed to drag on until all actual fact and reason have long been buried, and cleverly manipulated rhetoric remains.]
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Thorsteinssons LLP
Greg Delbigio
August 25, 2014
"Simply stated, litigation is the process whereby a legal dispute between parties is resolved by applying the facts to the law. At least in theory, these two factors (facts and law) are to determine the outcome of the dispute and it is on these two fronts that the battles of litigation are waged. Therefore, a litigation strategy must include establishing facts, controlling the evidence that will be presented to a judge, determining what law is applicable and convincing a judge as to the proper interpretation of the applicable law.
The recent decision of Bekesinski
v. The Queen, 2104 TCC 245 is generally unremarkable in that it does not
establish or clarify any important point of law. However, the decision serves
as a good illustration of how litigation is won and lost. The point in dispute
was simple – the Appellant was assessed as a director of corporation and his
position was that he had resigned and that the assessment should therefore be
vacated. During the trial, the Minister argued that the resignation was
backdated and not authentic or valid.
In allowing the appeal, the court
addressed a number of commonly encountered tax litigation issues. To begin, the
court set the framework which is that in the appeal, the Appellant was required
to “demolish the Minister’s assumptions by making out a prima facie case on a
balance of probabilities”. Citing the Federal Court of Appeal, the court
defined a prima facie case as “one supported by the evidence which raises a
degree of probability in its favour that it must be accepted if believed by the
Court unless it is rebutted or the contrary is proved.” If the Minister’s
assumptions are rebutted, the onus moves to the Minister to prove the
assumptions on a balance of probabilities.
Next, the court held that a fact
is not “inherently”, or as a matter of law, probable or improbable. Instead,
whether a fact or event is probable or improbable is to be determined, by the
judge, on the basis of the relevant evidence.
That said, experience in
litigation reveals and the following passage from Bekesinski illustrates that
fact finding may also very much be based upon judicial experience. On the issue
of backdating the notice of resignation as a director, the court stated: “I do
not believe that the alleged backdating of the Resignation is an improbable
event as the Appellant Counsel (sic) has characterized it. Documents of
convenience are often part of the evidence in tax appeals [and] backdating of a
document is not an event I would characterize as a highly unusual allegation.
While the judgment does not reveal
if evidence was led on whether backdating of documents is common or uncommon,
it appears that this finding of fact was based upon an impression or, what is
at times described as judicial experience.
In addition to judicial
experience, “common sense” is also at play. Citing case law, the court in
Bekesinski affirmed that in addition to other factors that relate to the
assessment of credibility, “common sense” may and should also be used “to
determine whether the evidence is possible, impossible, probable or highly
probable.”
In the result, the court held that
while the Appellant’s explanations about the Resignation and whether it was
backdated were “plausible”, there was no expert evidence upon the issue and the
Appellant was therefore successful in demolishing the Respondent’s assumptions.
The court stated: “Despite the Respondent’s allegation of backdating, the
Respondent failed to produce evidence that would prove, on a balance of
probabilities, that the Resignation is not authentic…I question the
authenticity of the Resignation but, without the appropriate evidence before
me, I must allow the appeal.”
In arriving at the result, the
court observed that the “Respondent made a series of litigation choices which
have resulted in my conclusion.”
The conduct of litigation is very
much about making choices based upon law, evidence, procedure and a good dose
of common sense mixed with experience. There are good decisions, there are bad
decisions, and there are those which must be based upon judgment and which
could go either way.
Bekesinski
illustrates how “litigation choices” can play out – in that case, unfavourably
for the Minister. Not every case can be won. However, even winning
cases can be lost and a successful litigation strategy must be based upon
controlling the litigation process and making the right decisions at the outset
for it is often the decisions that are made early on that shape the litigation
and either increase or decrease the chances of success. "
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Blogger's NOTE: I have several responses to the foregoing article;
1) Re the "conduct of litigation" (2nd last para), I have been advised that Appeal Court judges do NOT assess the facts of a case. Their objective is to ascertain whether the Appellant's Appeal to his/her Case dismissal, should be allowed, or dis-allowed, based on the case's adherence and application (or failure thereof) to the Rules of Civil Procedure - this hopefully includes the acknowledgment of the Canada Sedona Principles which discusses the overall application of fairness and proportionality.
2) My response to the last Para (above) regarding "litigation choices" directs my appeal to the previous Court's allowances (i.e the Case Managements' Masters) of the Defence's "successful litigation strategy, based upon controlling the litigation process, by making the right decisions at the outset ...etc...
Therein lies the crux of the matter! Here we enter the slippery slope of determining, or FAILURE to determine, truth from fiction, fact from strategy.
The saying "The best Defence is a good Offence" enters the premises. The 'GAME' is on.
Thus! Whether it is the Policeman and his Gun; the Hunter with his Knife; a cuckold husband with his Poison, or the Leanings of a Judge, all becomes a crapshoot of survival.
Fact is the kid is dead, the pig slaughtered, the case dismissed...
Justice is elusive.
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