Given the luxurious terms of their employment, complete with short working hours and long holidays, it is not a frequent occurrence that a judge would fall seriously ill or even die midway through a trial.

But though they might sometimes seek to convince otherwise, if one takes their pronouncements of truth to heart, judges are mortal.

In some cases, a statute may exist which enables a certain course of action in the event of the death or serious illness of a presiding judicial officer. In that event, recourse should be had to the statute in regards to course of action.

At common law, when a judge dies or is too ill to continue once a trial with witnesses has started, either party has a right to insist on a brand new hearing, a trial de novo. But in reality, as the law reports demonstrate, the parties often try to reduce the expense of starting over by concocting a deal to pick up with a new judge, as long as the new judge reads over the record of the adjourned trial.

dead reasonsIn Coleshill, Justice Fraser ended day one of a jury trial by falling ill and dying during the night. Another judge was shipped in from London and he jumped in with the consent of the parties, making himself privy to the notes of his deceased colleague. Although it was by consent, it was frowned upon. Justice Scrutton wrote:

"... it is a precedent which should not be followed in future. I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in Court...."

In a non-jury case, British Reinforced Concrete (1929), Justice MacKinnon referred to the above-cited words of Scrutton as dictum. British Reinforced Concrete had made their case before Justice Salter for four days of hearing. The lawyers agreed to let another judge take over (Wrottesley) who would rely on the transcript of the evidence taken before his deceased colleague.

MacKinnon endorsed the procedure consented to by counsel because there had been no jury or apparent "conflict of evidence".

In Bolton, evidence was given in a spousal abuse case and suddenly judge Wightwick took gravely ill and announced he could not finish the hearing. The lawyers scrambled and decided to have the whole of the wife's evidence read to a new judge (Rose) after which the women, still in the witness box, indicated on the record that that was her evidence.

Ultimately, Rose's decision was appealed and the lawyer on appeal relied on Coleshill to try to reverse a decision that had run against his client.

Justice Merriman wisely remarked that in cases where evidence and credibility is in contest, it is essential that the judge observe the witness' demeanor. Very reluctantly, the court refused to re-open the case given the consent of counsel but for the future, Merriman added:

"... this was a wholly irregular proceeding and ought not to be repeated. Everyone can understand the temptation to make a shortcut like this but, particularly in a case which is going to depend on the conflict between the two principal witnesses, it is essential to remember .. that it is important not merely that justice should be done but that it should manifestly be seen to be done."

The same result occurred in Chua Chee Chor where counsel tried to finagle their way out of an unfavourable result when they did not like the decision made by the replacement judge. Again stating how "undesirable" the arrangement was, the court dismissed the appeal:

"The defendant sought to hazard and, having lost, complains of it. Their Lordships cannot now regard as a denial of justice the procedure which the defendant himself ... requested and of which he made no complaint in the courts below."

Thus, subsequent cases suggest that if their is consent, another judge can pick up where the deceased left off. In Reilander, the lawyers agreed to give the case to one judge after another had taken some of the evidence within the defamation action. Later, one of the lawyers tried to get out of the deal but he was stopped by the appeal judge who wrote:

"If counsel choose to come into Court and deliberately so give a consent of this character on behalf of their clients, which I am of opinion that they have a clear right to give, they will not be allowed to set it aside...."

In Ritchie v City of Edmonton, the Justice Steer died after the hearing and after having hand-written draft reasons, but before he could signed or released the formal reasons. Again, counsel agreed to let another judge (Stevenson) study the notes of the late judge, invite the lawyers to re-make their oral submissions if they so desired, and to make the final order.

In Johnston v Stewart, Justice Dunlap heard an entire motor vehicle accident trial in Pembroke, Ontario. He hand-wrote out his written reasons and made arrangements with his courthouse secretary to have it typed. But that very night, he suffered a stroke and died two weeks later. The parties were called together by a new judge and they all agreed that whatever the contents were, the hand-written reasons of the deceased judge could stand.

The matter came to Justice Desmarais for decision. He wrote:

"I am satisfied ... that the writings of Mr. Justice Dunlap, assuming he dealt with all of the issues of fact and law that were argued before him (with the exception of interest and costs which were not argued) would constitute a decision in the matter.

"Regrettably they cannot constitute a decision as several matters argued before him were not adjudicated upon."

REFERENCES:

  • Bolton v Bolton [1949] 2 All ER 908
  • Chua Chee Chor v Chua Kim Yong [1963] 1 All ER 102
  • Coleshill v Manchester [1928] 1 KB 776
  • Johnston v Stewart, 28 C.P.C. (3d) 20, 116 D.L.R. (4th) 180 and at 1994 CarswellOnt 532
  • Re British Reinforced Concrete Engineering Co. Limited (1929) 45 T.L.R.  186
  • Reilander v. Bengert, 7 W.L.R. 891, 1 Sask. L.R. 259 and 1908 CarswellSask 85
  • Ritchie v. City of Edmonton, 20 L.C.R. 29, 108 D.L.R. (3d) 694, 35 A.R. 1 and 1980 CarswellAlta 338
  • Stevenson, W. and Cote, J., Civil Procedure Encyclopedia, Vol. 1, Chapter 3 "Judges' and Other Officers' Powers" (Edmonton: Juriliber, 2003), pages 3-21 to 3-23