Legalviews Personal

For an advocate, binding law is the vital key in two situations. One situation is a quick contest with limited time or words, such as an application without a trial. Another is any proceeding before the Court of Appeal.

Why? At a trial, maybe facts often matter more than law. But most lawsuits never go to trial. Facts vary and are lengthy and complex. What is quick and uniform? Law, especially a clear statute or a binding appellate precedent.

“Not always in King’s Bench chambers”, you may think. But any decision in King’s Bench contrary to binding appellate authority (or an Act) has foundations of sand. Rain will wash it away. When the very able Brigadier Nolan was a senior Alberta litigator, he used to warn lawyers in his firm not to win in the trial court on grounds which they could not hold on appeal.

If you win in a trial-level court when there is a single Alberta Court of Appeal decision which even seems contrary, that will strongly tempt your opponent to appeal. But had you known about that decision earlier, you could have adjusted your evidence or arguments, or distinguished the precedent. That would have left no ground for appeal.

So never go very far down some path, without first checking whether the law clearly favors you. Occasionally trial-court judges state views contrary to binding authority (or statute). But usually that happens because no one has looked up and cited the binding authority. Few trial-level judges simply dislike known appellate authority (or statute) and are determined to dodge it.

Counsel and judges do not try to fly in the face of Supreme Court of Canada authority. But many counsel and a few judges simply do not think to emphasize Alberta appellate decisions, still less give them superior power. (Decisions of the N.W.T. and Nunavut Court’s of Appeal are almost as strong, given the very large overlap in those courts’ judges with the Alberta Court of Appeal.)

Why do so many lawyers and judges indiscriminately mix binding and non-binding authorities together in the same stew? Law schools often dislike seeing any appellate authority as binding, leaving the impression that trial-level and appellate-level authority are all the same. Or treat a distant appeal court’s decision as just as binding here as a decision by our local Court of Appeal. Therefore, counsel who looks up a topic online and is faced with 60 reported decisions on a topic, tends to read the latest four. If they are consistent, the lawyer then stops looking. Maybe only 3 of the 60 are Alberta Court of Appeal decisions, readily findable. But many counsel do not even look for them, let alone read them.

Raise your strongest point very early, maybe first. That is a key rule of advocacy. Do not wait until your opponent has plausibly presented lesser arguments, and begun to beguile the judge. True, some legal arguments can be long and complex. But usually you can quickly and simply present one or two binding appellate authorities on point.

Often opposing counsel’s arguments are lengthy and complex, relying on many different topics and subtopics. A binding piece of law (statute or appellate decision) often lets you bypass most of that complexity. To a busy judge in chambers, that can be manna from Heaven. One extremely able counsel used to say “Nothing is more frightening than an opposing counsel who comes up to the lectern carrying nothing but a loose part of the Supreme Court Reports.”

On a procedural application before one justice of the Court of Appeal, often you have to show that your case is arguable. How? Citing even one decision on point by the Alberta Court of Appeal may well suffice. And when a panel of three Justices hear an appeal, they need to know whether the law being considered is novel, or settled. That governs how the draft judgment is to be written and discussed before decision. Citing previous appellate authority usually settles that topic. It may even get you a victory without the panel of judges calling upon you to argue.

So whether you won or lost in the first court, you are likely to end up before the Court of Appeal, and lose there, if at the outset you did not check binding authority. The Court of Appeal rarely owes deference to the first court on extricable questions of law. Even if your research omission does not unconditionally put you out of court, the law which you never looked up may in turn require evidence which you never thought to provide. Nor think to cross-examine about. That’s often equally fatal.

– Hon. J.E. Côté

ADVOCACY'S KEY