From: David Cheifetz <david.cheifetz@rogers.com>
To: obligations@uwo.ca
Date: 19/05/2012 13:14:46 UTC
Subject: Re: ODG - Lottery Winnings
On the other hand, well north of Arkansas, the appellants' written argument (factum) in Cojocaru v. British Columbia Women’s Hospital and Health Center 2011 BCCA 192, leave to appeal granted 2011 CanLII 75132 (SCC) [SCC case number 34304
 
the SCC's informational summary http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=34304 of the pending appeal is
 
Appeals - Judgments - Reasons for judgment - Decision of the trial judge contained large sections of the applicants’ written closing submissions, without attribution - Court of Appeal majority allowed appeals and ordered a new trial - When and under what circumstances can a trial judge adopt and incorporate in a judgment, without attribution, the submissions of a party?
 
The applicant, Eric Victor Cojocaru, the son of the applicant Monica Cojocaru, suffered brain damage during his birth at the B.C. Women’s Hospital and Health Care Center. An action was commenced against the hospital and its employees. At trial, the respondents were found to be liable and damages of $4 million were awarded. However, in his reasons, the trial judge copied almost word-for-word, without attribution, significant portions of the applicants’ closing submissions.
 
The majority of the Court of Appeal allowed the appeals and ordered a new trial. The dissenting reasons reviewed the trial decision on its merits and would have allowed the appeals in part.
and  the appellants factum (available at http://www.scc-csc.gc.ca/case-dossier/cms-sgd/fac-mem-eng.aspx?cas=34304 ) begins
 
PART I -OVERVIEW AND FACTS
 
A. Overview -Is There a Right Way to Write a Judicial Opinion?
 
1. When a trial judge adopts the submissions of only one party into his or her reasons for
judgment, is the presumption of judicial integrity and impartiality so fundamentally displaced so
as to render the trial unfair (or a nullity) in the absence of cogent evidence of bias? This is the
question being put squarely before this Honourable Court. In this case, despite noting the
significant hardship that its decision would cause the parties, the Court of Appeal ordered a new
trial and overturned a multi-million dollar judgment awarded to an infant plaintiff who suffered
severe brain damage during his birth. The new trial was ordered not because of any errors
inherent in the application of the law or findings of fact, as set out in the reasons for judgment,
but because the trial judge chose to adopt significant portions of counsel's submissions, without
attribution, in his written reasons.
 
2. Judges at all levels now commonly require counsel to provide their submissions on disc -
presumably to allow for convenient review, cutting and pasting.
 
3. The Appellants submit that the presumption of judicial integrity can only be displaced in
exceptional circumstances. Such circumstances were not present in this case. A trial judge does
not fail to be impartial and independent solely because he or she adopts substantial portions of
the written submissions of one party.
 
[emphasis in original - "solely" is underlined for those reading in text]
 
Cheers,
 
David
 
 
David Cheifetz
Smockum Zarnett Percival LLP
Toronto, Canada
From: Katy Eloise Barnett <k.barnett@unimelb.edu.au>
To: Jason Neyers <jneyers@uwo.ca>; "obligations@uwo.ca" <obligations@uwo.ca>
Sent: Saturday, May 19, 2012 3:00:43 AM
Subject: RE: Lottery Winnings

That's absolutely superb, Jason!

For those who enjoy lottery cases (I do) there was an interesting case involving a lottery in New South Wales last year, New South Wales Lotteries Corporation v Kuzmanovski (http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/106.html)

In that case, in July 2007, Mrs Kuzmanovski purchased two $5 instant lottery tickets for her husband for his birthday. The tickets were themed on the board game named ‘Pictionary’. Once the plastic covering had been scratched off, each panel revealed a picture, a word and a sum of money. When Mr Kuzmanovski scratched one of the tickets, he was delighted to see that one panel contained the word “Bathe”, a picture of a man swimming and $100,000. The Kuzmanovskis immediately began to celebrate their win.

However, the next day when Mr Kuzmanovski took the ticket to his local newsagency, the newsagent scanned the ticket, and the scanner produced the message that it was “not a winning ticket”. The Kuzmanovskis contacted the New South Wales Lotteries to protest the decision. NSW Lotteries informed them that the picture and the word did not match and that the ticket was not a winning ticket. In fact, the matching picture for the word “Bathe” was supposed to be a bathtub, and the matching word for the picture of the swimming man was supposed to be “Swim”.

The rear of the ticket had the following terms;

PLAY INSTRUCTIONS
Scratch Category A, Game 1 to Game 3 to reveal a word, a picture and a PRIZE in each Game.
If the word shown in any one Game matches the picture shown in the same Game, you win the prize shown for that Game.
Repeat this process for Categories B, C, D and E. …”
…
THIS TICKET IS GOVERNED BY THE PUBLIC LOTTERIES ACT 1996, THE REGULATIONS AND THE RULES. ...

As it happened, although the play instructions suggested that the Kuzmanovskis had won (as arguably, the picture *did* match the word according to the dictionary definition of 'bathe'), section 50(4) and (5) of the Public Lotteries Act provided:
(4)    A prize is not payable in respect of a ticket in an instant lottery if the ticket does not satisfy any such verification code or other test.
(5)     This section has effect even though the ticket may indicate that a prize has been won.

The trial judge held that the notice on the rear of the ticket was not sufficient to incorporate the statutory terms, so that the Kuzmanovskis were entitled to $100,000 (being the expectation interest under the contract) and that moreover, if he was wrong on the contract, they were entitled to $20,000 under the Trade Practices Act for the distress suffered as a result of the misleading or deceptive conduct. On appeal, the Full Federal Court reversed the trial judge's decision as to the contractual award but upheld the award of damages for distress.

There's an amazing number of cases on lottery tickets which were misleading or had rules which were somehow ambiguous, and on cases where lottery tickets are somehow defaced, mislaid or otherwise lost. I shall enjoy looking at this one.

Kind regards,

Katy

Dr Katy Barnett
Senior Lecturer
University of Melbourne
Parkville 3010 VIC
AUSTRALIA

+ 61 3 9035 4699

k.barnett@unimelb.edu.au



________________________________________
From: Jason Neyers [jneyers@uwo.ca]
Sent: Saturday, May 19, 2012 5:10 AM
To: obligations@uwo.ca
Subject: ODG: Lottery Winnings

Dear Colleagues:

Can someone who has thrown away a $1 million winning lottery ticket
(mistakenly thinking it was a loser) claim the proceeds back from
someone who took the ticket out of the garbage and claimed the prize?
Yes, according to the law of Arkansas :

http://www.thestar.com/news/world/article/1172212--winning-lottery-ticket-plucked-from-trash-lands-two-women-in-court-fight
http://www.huffingtonpost.com/2012/05/02/sharon-jones-lottery-winner-pay-back-winnings_n_1470244.html

Apparently, judges in Arkansas can ask the parties to write their
judgments as well: "The judge instructed the winning side to write the
judgment for his signature, and it will become official once [White
County judge] Hughes signs it"

Sincerely,

--
Jason Neyers
Associate Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435