Judge quotes Shakespeare on the nuance of language
Lawyers on both sides of a case in Ontario’s Superior Court of Justice experienced the hazards of being too polite or indirect in emails and cover letters.
The case focuses on an invalid jury notice — but also reproduces a miscommunication in counsels’ email messages.
More than four months after pleadings for a statement of claim served in September 2017, the defendant served a jury notice, according to the Nov. 18 decision, Mahadeo v Blue Cross Life Insurance Co., 2019 ONSC 6611. It is “an error of law” to serve and file a jury notice after the close of pleadings, wrote Justice Edward Morgan in the decision.
The day he received the jury notice, one of the lawyers for the plaintiff wrote to the defendant’s counsel.
“Barry, I got your jury notice, but there is nothing else in the covering letter,” wrote the plaintiff’s lawyer. “Since pleadings are closed it would seem that you are out of time, are you trying to indicate that you are going to bring a motion to change this to be a jury matter?”
Three days later, the defendant’s lawyer responded: “I would prefer that you could agree to late service rather than requiring a motion for leave. I look forward to hearing from you.”
The parties then proceeded through discoveries “without further mention of it,”.
In a motion to strike jury notice, plaintiff lawyers Andrew Monkhouse and Miguel Mangalindan argued that they had objected to the validity of the jury notice since the outset, since it was served after the close of pleadings. One of the defendant’s lawyers, Andrew Cottreau, meanwhile argued that Monkhouse and Mangalindan’s “lack of objection represents agreement” and that the email exchange “was not an objection, but was merely an inquiry,” since it ended in a question mark.
Morgan’s decision disagreed with Cottreau’s “rather literalist” interpretation. Cottreau declined to comment, but said the decision will be appealed.
Quoting “Macbeth,” Morgan noted that a question can be an expression of guilt: “What, will these hands ne’er be clean?” Another Shakespearean tale, “Romeo and Juliet,” uses a question as “a declaration of existential angst,” wrote Morgan, citing, “Wherefore art thou Romeo?” An interpretation of “Merchant of Venice,” meanwhile, shows a question as an argument of equality, wrote Morgan, using the example, “If you prick us do we not bleed?”
“This motion asks, in effect, when is a question not a question?” wrote Morgan in his decision. “English language usage allows for numerous meanings to be associated with a question other than an inquiry, strictly speaking. A question in form is not necessarily a question in substance.”
Morgan concluded that Monkhouse’s question (“are you trying to indicate that you are going to bring a motion to change this to be a jury matter?”), was, grammatically speaking, an imperative question.
“It is a slightly more polite form of vocalized demand that I would observe is commonplace in Canadian idiom,” wrote Morgan. “An example might be telling someone in a drafty room, ‘Can you close the window?’ The form is interrogatory; the substance is a demand.”
“In February 2018, the Defendant was immediately advised, politely, by Plaintiff’s counsel that it should bring a motion for leave to file a late Jury Notice. It did not rise to the challenge.”
In addition to the terse email exchange, further miscommunications were created by the parties cover letters. Monkhouse and Mangalindan included a copy of the invalid jury notice in the trial record out of “an abundance of caution.” Rule 48.03 requires a trial record include “a copy of any jury notice.”
“Unfortunately, there was no covering letter accompanying the Trial Record explaining this interpretation to the Defendant or to the court. There was also nothing in the Trial Record itself that would signal to a reader that the inclusion of a Jury Notice did not mean that this matter is to be a jury trial,” wrote Morgan. “I accept that Plaintiff’s counsel was being cautious, but he was being cautious to a fault.”
Monkhouse says that with a busy, modern day practice, he finds himself sending dozens — if not hundreds— of emails daily, and Morgan’s decision is a reminder that early communication puts everyone on the same page.
“You know, you don't necessarily expect to see [your emails] in the motion record, or to be fighting about whether or not something's a question, but I think his honour certainly sided with our interpretation,” says Monkhouse. “It's certainly significantly more polite to say, ‘Are you able to close the window?’ rather than ‘Close the window.’”
Despite the snafu in this case, Monkhouse says that if anything, emails tend towards being too curt.
“Emails can sometimes be too abrupt as a medium. That causes, frankly, often more issues than people being too polite in them, unfortunately,” says Monkhouse.
“I think it's good to have judges writing decisions that make these sorts of references because I think they reach a wider audience, and foster a more interesting discussion about the nuances of language. I think that's always useful.”