Recently, the Chief Justice of the Court of Queen’s Bench in Alberta (Alberta’s superior court) scolded a litigant for engaging in a practice known as “judge shopping”. The man was told that he must follow court orders imposed by previous judges and not try and seek a more favourable outcome.

This week, we explore what judge shopping is, why it is frowned upon.

Judge Shopping

Judge shopping is a practice of trying to replace a judge that has been assigned to your file with another one in the hopes that the new judge will be more favourable for your case. There is a perceived tactical benefit and is considered to be an abuse of the court.  In Canada, judge shopping is considered an abuse of the court and litigants are not permitted to engage in such behaviour.

In litigation, judge shopping often comes in the form of either filing several lawsuits for the same claim in the hopes of getting a more favourable judge or asking a judge to recuse themselves from the file for alleged bias. Alleged bias could be based on a previous ruling the judge had made against the litigant or the judge’s history on files of the same nature as the claim before them.

A Case Study

In civil and other litigation, individuals may seek to have a judge removed for apparent bias. This is what the recently admonished Edmonton litigant did.

The man wrote a 7-page letter to the office of the Court of Queen’s Bench (“QB”) in February outlining concerns he had about the way in which his various matters were being handled and criticized two of the judges who had presided over his cases. The judges in question had previously imposed orders to restrict the man’s ability to file new claims.

The litigant, who was supposed to follow specific processes if he wanted to file anything further with the courts, contacted the Chief Justice’s office with the letter, and subsequently followed up several weeks later, expressing concern that he was not being heard.

While such communications may not appear to be a filing of a new claim, the Chief Justice saw this as a “formal leave application.” The litigant expressed his desire to replace his case management judge and made additional requests such as asking the court to end the court restrictions previously made against him and rescind various previously issued court orders. He claimed that the judges in question had displayed bias against him.

The Chief Justice was unimpressed with the unusual and inappropriate way the litigant was approaching this issue.

She warned him that if he continues his efforts to skirt the rules of the court, he may be seeing further court restrictions, costs awarded against him, or may be found in contempt of court. Further, she told the man that if he wants to be considered a litigant who is dealt with fairly, he should pay the penalty he was ordered to pay in 2016 for being found in contempt of court because of his litigation misconduct.

Why is Judge Shopping Inappropriate?

Judge shopping is an abuse of process and is not permitted. Abuse of process, by definition, is when a litigant uses the legal system by illegal, malicious, or perverted means. The focus of this doctrine is on protecting the integrity of the judicial process. There are no set requirements for proving abuse of process as it is a flexible concept, however, it is not an easy application to prove. The facts must be clear that abuse of process has occurred in order for the claim to be dismissed. In the case of judge shopping, it is not always clear if the litigant’s goal is to get a new judge.

As evidenced by the above, the court will not take lightly litigants ignoring rules and procedures and going over the head of judges. If the litigant in question believed the judges were genuinely biased, he should have brought an application directly to them to recuse themselves, rather than complaining to the Chief Justice.

Avoiding Judge Shopping

While the judge that presides over your trial, or manages your case, may be deciding your fate, it is always best to act in accordance with the rules of court. If you believe your judge is biased, then you must file a formal application asking the judge to recuse themselves. The judge will then hear the reasons as to why they should be recused. If they do not believe any bias is present, they will not recuse themselves.

It is entirely inappropriate to, as the litigant in question did, send a letter to the Chief Justice regarding your ongoing litigation to rant about other judges. This completely circumvents court rules and procedures.

A litigant’s behaviour in court may not necessarily affect the analysis of their case on its merits, however, it may affect a judge’s perception of that litigant’s credibility.  the outcome in terms of costs awarded. If litigants attempt to “shop around” for a judge they think would be more favourable to their case, they may risk being found in contempt of court, be ordered to pay penalties, or be restricted in how they can use the court going forward.

At HMC Lawyers, our lawyers have the experience, knowledge, and skills to argue your file on its merits. Our lawyers take their time in the preparation of each application, meeting, or trial, and work diligently to represent your interests to the fullest extent of the law. If you think you have a claim, contact us today to arrange a meeting with one of our skilled lawyers. Call us at 1-800-480-3534 or contact us online to make an appointment today. With offices in Calgary, we represent professionals in Calgary, throughout Alberta, and across Western Canada.