Schwartz Estate v. Kwinter, 2012 ABQB 389

Court of Queen ’ s Bench of Alberta Citation: Schwartz Estate v. Kwinter, 2012 ABQB 389 Date: 20120612 Docket: 0501 17525 Registry: Calgary Between: Elaine Gayle Myron , Executrix of the Estate of William Schwartz Plaintiff - and - Shelley Ray Kwinter, Alyse Schwartz, Susan Finfer Justin Kwinter, Ian Lawrence Myron and Adam Spence Myron Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C. A.

Kent _______________________________________________________ [ 1 ] I have been case managing this action, first when it was about the substantive claims and now as it relates to a costs hearing. The final piece is to set a date for the costs hearing which requires 4 days of judicial time. An issue arose because of the number of judges identified by counsel for the plaintiff in Form 37 as having "... a potential conflict, which may disqualify them from hearing the trial of this matter...".

In a draft letter to the Civil Trial Coordinator dated January 28, 2012, counsel for the Plaintiff identified 23 Calgary judges who he said had a potential conflict. The letter which was sent to the Trial Coordinator identified 16 judges. Included in that list were judges who, for example, had no relationship that was known to either side. Rather, they were judges who had practiced law at law firms who may have acted for one of the parties or the testator. Some of those judges have been on the bench for over 15 years.

[ 2 ] Counsel for the defendant argues that that list is nothing more than an attempt on the part of counsel for the plaintiff to pick a judge of his liking, essentially shopping for a judge. Counsel for the plaintiff argues that all he was doing was filling out the form as best he could. He says that it could be that one of the judges, even those who have been on the bench for over 15 years, could have a potential conflict. [ 3 ] Judge shopping can be a dangerous practice. At its worst, it can call into question the principle of impartiality that is a foundation to a strong, legitimate judicial system.

In emerging democracies, one of the measures of an independent, impartial judiciary is a system of judicial assignment that assures impartiality and fairness. Many emerging democracy use a randomized computer system so that there can be no question that judicial assignments are rigged. In a sophisticated and strong judicial system such as we have, particularly in a time of very scarce judicial resources, a more nuanced process of judicial assignment is appropriate.

For example, in long and complex trials, counsel may approach the Chief Justice who may allow counsel to submit a list of judges who would be appropriate to hear the case. The Chief Justice then assigns one of those judges. Counsel on criminal trials are advised in advance of the name of the assigned judges in jury trials to allow counsel the option of re-electing to a trial with a judge sitting alone.

Neither of those processes impair the principle of judicial impartiality. [ 4 ] On the other hand, if counsel are permitted to use the question in Form 37 to limit the judges available for assignment, there could be a problem. For example, a counsel may have reasons that are not appropriate for disqualification. Perhaps it is a judge who heard a trial or application previously where the counsel was unsuccessful. Perhaps it is a male judge and one party to the case is a mother with a terrible history of failing to make child support payments. [ 5 ] I am not suggesting any inappropriate motives in this case.

However, it is important to set boundaries on who are identified in Form 37 as judges with potential conflicts to avoid any abuse of the system. First, it is incontrovertible that only the judge himself or herself who may have a conflict can decide if he or she must disqualify. Form 37 is only an aid to identify judges with obvious conflicts. While it is dangerous to attempt to create a complete list, some categories are obvious.

Included would be recently appointed judges who do not hear cases from their former firm, the case management judge, or a judge who has said in earlier proceedings that he will not hear any further proceedings. It is not the case that any judge who has heard an interlocutory proceeding cannot sit on the case nor is it the case that any judge who was previously a member of a firm is automatically disqualified. The situation is different for recently appointed judges. Some can and some cannot.

In this case, the ones who are obviously disqualified are Kent (case manager), Sullivan (case manager on a related matter), Clark (has indicated he will not sit on this matter), and Poelman (recently appointed) from the firm representing the Defendants. There may be others. There is a system in place in the Civil Trial Coordinator's office to circulate the names of upcoming cases so that judges can determine whether they are disqualified. Although it is used mostly for trials of more than 5 days, I would ask the Trial Coordinator to use it in this case. Heard on the 8 th day of May, 2012.

Dated at Calgary, Alberta this 12 th day of June, 2012. C.A. Kent J.C.Q.B.A. Appearances:

Ariel Breitman McCarthy Tétrault LLP for the Plaintiff Steven Leitl Karl Seidenz Norton Rose Canada LLP for the Defendant