Gary Joseph | Feb 2022

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

I do in fact have loyal readers of my various rantings, graciously published in this daily. One such reader was kind enough to send me a decision of Justice Ronald P. Kaufman of the Superior Court of Justice in Newmarket, Ont. It is a 2014 decision that so articulately describes the problem of writing to judges that I have begged the editors to permit me this addendum to my article Stop writing to judges.

In one brief paragraph Justice Kaufman says it all. The decision is Balsmeier v. Balsmeier 2014 ONSC 3457.  At paragraph 2 of the decision, responding to a 12-page fax “with endorsements attached” from counsel for the applicant and a responding letter from counsel for the respondent, Justice Kaufman states:

"Prior to briefly dealing with the substance of the emails, I am mindful of the protocol of this court in responding to unsolicited correspondence to the court by counsel. As members of the Law Society of Upper Canada, both counsel should know that it is inappropriate and unacceptable for counsel to correspond directly with the judiciary on a matter before the court, unless specifically invited to do so. The members of the judiciary are neutral, independent, impartial triers of facts, who make decisions on cases based on the evidence presented to them in court and through court process. It is inappropriate for a party to communicate with a judge outside of the courtroom, as it makes the court process unfair and leads to potential abuse of such process."

So, there you have it. In straightforward and easily understood language. Direct from a respected justice of one of the busiest courts in the province. There are other judicial pronouncements of the same kind, but you don’t need more. It really is a matter of respect, respect for the courts and the dignity of the process and respect for opposing counsel. When counsel disregard and disrespect appropriate process and at the same time opposing counsel, lay parties involved may well wonder why they should show respect.

I promise I will not write again on this subject. However, permit me one moment more to reflect upon the nostalgia occasioned for me in referencing above the name “Law Society of Upper Canada.” I know that raises ire in many, I am aware of the reasons for the change, but I believe that we can move ahead to make our profession more inclusive without forgetting or cancelling our past.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP.

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