Friday, December 16, 2005

Kerans J.A. - a judge who writes like a human!

I'm having procrastination issues with my Business Organization summary. So far this morning, I've fiddled a bit with the formatting. Last night, I took one of my textbooks to band practice and read during the break and during long rests. [One of those rests was the third movement to Yukon Summer {excerpts here}. We're practising it for our "Collaborations" performance at the Festival of Brass in Toronto on March 11. It's going to be excellent. You should plan to be in Toronto that weekend and get tickets.] I was reading about shareholder disputes and came to an Alberta Court of Appeal decision in Westfair Foods Ltd. v Watt. Seems the corporation had Class A shares that carried a $2 dividend in priority to the common shares, and all dividends beyond those going to the class A shares went to the common shares. The corporation had been retaining most of its earnings, but then the directors decided to start distibuting the net earnings as dividends. I think this meant the common shares were getting more money and that if the company shut down, there'd be less money for the shareholders to split up so the Class A shareholders didn't like this. Probably in the next few days, I should really get a handle on this. Anyway, I came across this: Peterson, Shareholder Remedies in Canada, the author contends that "unfairly disregards" implies that some "disregarding" is fair! I reject that kind of parsing.

Holy cow! I thought. An appellate judge using an exclamation mark! And making sense! Who is this guy? Kerans J.A.

Then he gave an explanation about fairness that I really could have used two years ago (I've removed citations):

Having concluded that the words charge the courts to impose the obligation of fairness on the parties, I must admit that the admonition offers little guidance to the public, and Parliament has left elucidation to us. I have elsewhere said that I take this sort of indirection as legislative delegation. We fail in that duty of elucidation, I think, if we merely say "this is fair" or "that is not fair" without ever explaining why we think this or that is fair. Thus I, and I dare say others, am not much helped by cases and comments that simply announce that I am to enforce "fair play" or "fair dealing". On the other hand, I do not understand that the delegation of this duty permits a judge to impose personal standards of fairness. Let me illustrate what is probably obvious by two extreme examples. A judge who firmly believes in the virtues of unrestricted private enterprise might say that fairness requires that people protect themselves to their best capacity, and that the courts not protect those who fail to protect themselves. On the other hand, a judge who firmly believes that private property is a trust held for the benefit of society as a whole might say that what is fair is what best benefits society. The role of a judge in our society limits the impulses of both my mythical judges. We must not make rules unless we can tie them to values that seem to have gained wide acceptance. We do that largely by testing any proposed rule against other legal rules, which by long tradition seem accepted. In short we seek precedent, or we seek to argue from what we consider to be principles adopted in precedent.

Westfair Foods Ltd. v. Watt (1991) 79 D.L.R. (4th) 48 (Alta CA) at 53, 54

Apparently, Justice Roger Kerans has retired from the bench and now practices mediation. According to his website he's settled half a billion dollars worth of disputes.

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