The Judicial “Ha-ha-ha”: Like the “Ho-ho-ho,” but Nastier

The ridiculous side of things is not far to seek, and most people delight more than they should in amusement and in jestinly[1] . That was Aristotle, a long time ago, and it’s still true. Modern evidence-based research suggests that people experience humour and engage in laughter because it dispels pent-up stress.[2]

Whatever the reason, when it’s late at night and the research is piling, a judge who cracks a joke in the middle of the reasons is doing a public service. True, there are those who find judicial humour problematic, nasty and having potential to trivialize tragic, or at least uncomfortable, events[3] . That reasoning strikes me as questionable - the tragic events will not improve any whether you laugh or cry at them, so we might as well enjoy a giggle over the spilt milk, since it’s not going back in the bottle anyway.

As I had been amused by the quips, jibes and scathing sarcasms that follow, I am happy to share. So here goes.

It is in the field of Family Law, I find, that the judicial commentary tends to be particularly vitriolic. Whether it is the sheer exhaustion of watching the mud-flinging fests, or the desire to infuse some cheer into the grim proceedings, but the commentaries are snarkier than a tank of piranhas.

Nikolaev v Fakhredinov, 2015 ONSC 6267
[1] There are few litigation policies more strongly advocated than the policy favouring settlement out of court in family law cases. In this case, the parties reached a settlement themselves. The settlement was in the form of a separation agreement that is elegant in its simplicity. Essentially, the respondent husband agreed to sign over his half of the family condominium to the applicant wife. In return, the applicant wife released the respondent from all of his spousal and child support obligations. To save money, the parties jointly retained a paralegal to draft the formal agreement for them. They did not obtain independent legal advice before they signed their separation agreement. This is an unfortunate example of the adage “penny wise and pound foolish.” The parties have since realized that the separation agreement, as drafted and signed, was, at minimum, incomplete and, perhaps, so unfair to the children and the parties as to be unenforceable. They have terminated the agreement and are left to litigate the issues that they had hoped to resolve. They saved the cost of negotiating an agreement. Instead, they incurred far greater financial and emotional costs of litigation.
[...]
[92] The parties could not settle a difference of $34.84 concerning the value of the Canadian Tire account. In my view the proportionate outcome is to split the difference without considering the merits and to recognize the value of the account at $17.42 between the parties’ positions and I so find.
https://www.canlii.org/en/on/onsc/doc/2015/2015onsc6267/2015onsc6267.html

Fercho v. Dos Santos, 2006 ABQB 879 (CanLII)
[1] The parties were married late in life in 1997 but separated 10 months later. An attempt at reconciliation was not successful and they divorced in 2000. Although their marital union failed, the parties have been successfully united in litigation for the past seven years over the division of their matrimonial property.
https://www.canlii.org/en/ab/abqb/doc/2006/2006abqb879/2006abqb879.html

As for the following judgement, it is only the space constraints that are preventing me from quoting the whole thing. Illustrated, it’d be one exciting comic book, with the characters named Slimey and Oinky:

Henderson v Henderson, 2016 SKQB 282
[1] Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live.
[2] But after all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.
[3] This is an application involving interim possession of two dogs owned by the parties or, perhaps, one of them. The petitioner [Kelly] wants one of the dogs and says the respondent [Suzanne] may choose which she will keep. Suzanne wants both of the dogs. Neither will budge.
[4] In a justice system that is incredibly busy, where delay has virtually become systemic, where there are cases involving child welfare and family matters that wait months for adjudication, these parties have chosen to throw this dispute into the mix. I am sure that to them, this is the most important matter. But it must be kept in perspective and measured against other matters, many of which inarguably are of more importance. The foundational rules in our Queen’s Bench Rules speak to proportionality and reasonableness. Parties are bound by those rules. To consume scarce judicial resources with this matter is wasteful. In my view, such applications should be discouraged.

Facts
[...]
[6] The parties did not have children. They acquired pets. They appear to have lavished their natural love and affection on these pets, which is not at all unusual in such a situation.
[7] Suzanne says that Kelly was a cat person. Kelly owned a cat named Rodent when they moved in together. Rodent died, and Kelly subsequently bought another cat which he named Slimey. Later, wanting Slimey to have a playmate, Kelly bought another cat which he named Oinky. Later still, there was another cat, Beaker. When Kelly and Suzanne bought their first residence together, Slimey and Oinky came along. Suzanne suggests that Kelly was improperly inattentive to the cats during the relationship. For present purposes, that information is not particularly helpful.
https://www.canlii.org/en/sk/skqb/doc/2016/2016skqb282/2016skqb282.html

Sometimes, what drives the humour appears to be outright exasperation. At the wrangling, at the incompetence, at the dumbfounding oddity of what must not pass, but still, on a regular basis, does. There are also the times when you don’t need humour. Because the facts – such as they are – speak for themselves.

Laramie (Re) (Trustee of), 2001 ABQB 465

[23] This dispute is like the alien life form in the movie The Blob. It has a life of its own and it just keeps growing. Why that should be so is a puzzle to me. Perhaps the facts that the loan was to be for just one year, secured by a first mortgage and at a 13.75% interest rate has something to do with F and E tenaciously hanging on. When the fraud was discovered F and E should have discharged the mortgage and assignment of rent and pursued the bankrupts for breach of contract or for tort or just written off its losses. This litigation with the trustee is not the way to go.
https://www.canlii.org/en/ab/abqb/doc/2001/2001abqb465/2001abqb465.html

Grabher v. Nova Scotia (Registrar of Motor Vehicles), 2018 NSSC 87

[1] Following a complaint, the Registrar cancelled Mr. Grabher’s personalized licence plate which read “GRABHER” and which he purportedly had since in or around 1990. It did so pursuant to sections 5(c)(iv) and 8 of the Personalized Number Plates Regulations, NS Reg 124/2005, on grounds that it “expresses or implies a word, phrase or idea that is or may be considered offensive or not in good taste”.
[2] Mr. Grabher commenced the within Application in Court seeking a declaration: that the cancellation of the Plate unjustifiably infringes his freedom of expression and equality rights under sections 2(b) and 15 of the Canadian Charter of Rights and Freedoms; and, that sections 5(c)(iv) and 8 of the Personalized Number Plates Regulations infringe his freedom of expression rights and are of no force or effect.
https://www.canlii.org/en/ns/nssc/doc/2018/2018nssc87/2018nssc87.html

In this case, the court, in deciding what to do with a ghost, was guided by a decision that had addressed the claims of a Martian:

V.W.W. v. Wasylyshen, 2013 ABQB 327 (CanLII)

[29] Lastly, Ms. Wong stated that she did not personally have an interest in further prosecuting the Action, but was instead acting on the instructions of her deceased sister’s ghost. I will address that unusual argument in more detail below.
[...]
[73] Nevertheless, in this instance I believe the correct approach is provided by an analogous scenario investigated in Joly v. Pelletier, [1999] O.J. No. 1728 (QL), 1999 CarswellOnt 1587 (Ont. Sup. Ct. J.). The plaintiff, Rene Joly, sued a variety of individuals, medical and lab facilities, and government officials who the plaintiff alleged had conspired with the American government to conceal the fact he was not human and: “... to eliminate him and otherwise taken various steps to interfere with his ability to establish himself and live freely as a martian.” Justice Epstein struck the action on two bases: it was frivolous and vexatious, and also as Rene Joly, self-admitted martian, did not have standing with the court:

... While conspiracy to do harm to someone is the basis of many actions in the Court there is a fundamental flaw in the position of Mr. Joly. Rule 1.03 defines plaintiff as "a person who commences an action". The New Shorter Oxford English Dictionary defines person as "an individual human being". Section 29 of the Interpretation Act provides that a person includes a corporation. It follows that if the plaintiff is not a person in that he is neither a human being nor a corporation, he cannot be a plaintiff as contemplated by the Rules of Civil Procedure. The entire basis of Mr. Joly's actions is that he is a martian, not a human being. There is certainly no suggestion that he is a corporation. I conclude therefore that Mr. Joly, on his pleadings as drafted, has no status before the Court.
[74] Justice Epstein has adopted a strict approach to the definition of “person”. In parallel, and absent clear legislative intent to the opposite, I refuse to entertain the directions of Ms. M. Leung (ghost), as channelled by Ms. Wong. This Court cannot and will not sit idly back and entertain applications by Ms. Wong that may be directed in Ms. Wong’s mind by the ghost of her late sister. To do so would be a clear abuse of process in the highest degree, and would bring the administration of justice into disrepute; something this Court will not permit.
[75] I therefore reject all of Ms. Wong’s claim as initiated by Ms. M. Leung as being without merit. To permit the litigation against Dr. P. Leung to continue is an abuse of process. I therefore strike the Action against Dr. P. Leung by Ms. M. Leung, both personally and as Ms. Wong’s representative for litigation purposes.
https://www.canlii.org/en/ab/abqb/doc/2013/2013abqb327/2013abqb327.html

Given that Thalia was a muse of both comedy and pastoral poetry, it is not surprising that some judges wax outright poetic:

Kuypers v. Langley (Township), 1992 CanLII 8582 (BC SC)

[1] In the early evening hours of the 10th day of April A.D. 1991, one of the good citizens of the defendant, the Township of Langley, was lawfully ambling along 204th St. in the balmy spring weather, when, with little warning or prior indication, a dog since described and defined by by-law and otherwise as a "dangerous dog" (a matter which is in some dispute), crossed over from the hither side of the street and nipped the right gluteus maximus of this innocent pedestrian. The unfortunate and unhappy event caused a breaking of the skin and bruising, which no matter where, how, or to whomsoever such might obtain, is a traumatic and painful occurrence worthy of litigious consideration and appropriate recompense. And let it be made abundantly clear, the determination of the villain who perpetrated this anguish has not been determined, such matters having been left to another day and forum, as ours is of different concern.
https://www.canlii.org/en/bc/bcsc/doc/1992/1992canlii8582/1992canlii8582.html

Oh, and if I ever have trouble coming up with case law to back up a position, I could always offer the last sentence of the following judgement paragraph as justification:

MacKenzie v Scotia Lumber Co, [1913] NSJ No 10

6 We are, therefore, I think, obliged to answer the question whether one who takes the property of another person, mistaking it for his own, but returns it to the owner immediately upon discovery of the mistake, can be held liable for conversion of the property. The case must have occurred a thousand times, but the reason why counsel, who argued the appeal, were unable to cite any authority directly bearing upon the question, is probably that, until this case arose, there never was anybody wrong-headed enough to make such an accident the subject of an action at law.
(Availabe on Lexis Advance Quicklaw).

I will finish off with two jurists whose work had definitely crossed from “legal” into “literary.” One is the recently retired Master Funduk of the Alberta Court of Queen’s Bench, whose writing is now published in a book - Fundukia: the whimsical wit and wisdom of Master Michael Funduk[4] . He is particularly famous, I would say, for a passage that explained the concept of stare decisis (judicial precedent):

South Side Woodwork v. R.C. Contracting, 1989 CanLII 3384 (AB QB)

[51] Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.
[52] I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.
[53] I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.
https://www.canlii.org/en/ab/abqb/doc/1989/1989canlii3384/1989canlii3384.html

The other well-known jurist of yesteryear is Frank Reginald Scott, a Canadian constitutional lawyer (1899-1985) who had successfully defended the rights of the publishers of D.H. Lawrence’s Lady Chatterley's Lover, the book that had gone court-hopping wreathed in obscenity charges. Scott had taken the lovely lady all the way to the Supreme Court of Canada, and celebrated his victory in 1962 with a poem:

I went to bat for the Lady Chatte
Dressed in my bib and gown
The judges three glared down at me
The priests patrolled the town

My right hand shook as I reached for that book
And rose to play my part
For out on the street were the marching feet
Of the League of the Sacred Heart

The word obscene was supposed to mean
Undue exploitation of sex
This wording’s fine for your needs and mine
But it’s far too free for Québec’s

I tried my best, with unusual zest
To drive my argument through
But I soon got stuck on what rhymes with “muck”
And that dubious word “undue”

So I raise their sights to the Bill of Rights
And cried “Let freedom ring!”
Showed straight from the text that freedom of sex
Was as clear as anything

Then I plunged into love, the spell that it wove
And its attributes big and bold
Till the legal elect all stood erect
As my rapturous tale was told

The judge's sighs and rolling of eyes
Gave hope that my case was won
Yet Mellor and Connie still looked pretty funny
Dancing about in the sun

What hurt me not that they did it a lot
And even ran out in the rain
‘Twas those curious poses with harebells and roses
And that dangling daisy-chain

Then too the sales made in the paperback trade
Served to aggravate judicial spleen
For it seems a high price will make any book nice
While it’s mass distribution’s obscene

Oh Letters and Law are found in the raw
And found on the heights sublime
But D.H. Lawrence would view with abhorrence
This Jansenist pantomime.

Obviously, there’s plenty, plenty more where all that had come from. But since compulsive loquaciousness is the fault of far too many lawyers, I will stop here. Whether those who aim for a laugh get it or not, they must get points for trying. With everything that life has to throw at us, laughter is – however meager – a shield. “The robbed that smiles steals something from the thief,
He robs himself that spends a bootless grief."[5]

Footnotes

[1] Aristotle, Nicomachean Ethics (translated by W.D. Ross), (Batoche Books: 1999).

[2] Wilkins, J. & Eisenbraun, A. J. Humor theories and the physiological benefits of laughter. Holist. Nurs. Pract.

23, 349–354 (2009).

[3] Marshall Rudolph, “Judicial Humor: A Laughing Matter?”, 41 Hastings L.J. 175 (1989) or Barb Howard,

“Literary Judgements Doing More Harm than Good?” 22 Green Bag 2D 125 (2019). Mailhot and Carnwath,

Decisions, Decisions. A Handbook For Judicial Writing (Yvon Blais: 1998) in Chapter 8.

[4] https://www.worldcat.org/title/fundukia-the-whimsical-wit-and-wisom-of-master-michael-funduk/oclc/680323836

[5] Shakespeare, Othello, Act 1, Scene 3.