John Clemens at the SCC

2014.June.25.01:00

with subsequent revisions

John Clemens at the SCC

There’s an ol’ saw that a Lawyer who represents herself at court has a fool for a client.  To which I would add: a fool, an ignoramus and probably dangerous (borrowing a line from my memory, and from a 1902 commencement speech, and not from any personal experiences).

These snippets came to mind the other day at an SDLA Library Committee meeting specially called to discuss the question of whether, and on what terms, members of the public might be allowed access to the courthouse library resources at 155 Elm St. It might be self evident that the expectations of those serving on the ground at county & district law libraries are that virtually all requests by non lawyers (ooops, non licenced LSUC members) will occur when such a person is involved in some personal litigation.

Felicitously LibraryCo, the umbrella outfit for courthouse libraries, of which I was for a time most familiar, created a 2006 policy offering guidelines to the locals on how to handle the issue. The Guidelines allow public access. With serious constraints. One constraint on the public’s privileges: no access to the electronic / computer /internet services at the library desktop. The policy makers had conveniently hid behind contract terms with the Publishers which prohibits non lawyer access. Terms I note that LibraryCo had readily assented to. Stay tuned for the outcome of Sudbury’s policy discussion.

In turn this called to mind one of the more remarkable litigation stories ever to emerge from Sudbury roots. And involving a self-represented person no less. I’ll let you connect the dots at the end by yourself.

The year: 1952. There was an estate contest that matched John Jr. against his mother, siblings, and the estate Trustees. The stakes: share certificates in INCO that today would have value well over a million bucks. John Sr. had died a couple of years earlier.

John Sr. had been, since just before 1940, a bit  of a local hero /legend. He was a brewmaster, and hobby metallurgist that had been recruited from Detroit to oversee the construction and operations of a new world class brewery facility owned by some of Sudbury’s most prosperous families. I can only assume John Sr. was affluent.

John Sr. had a wife (who preferred the States) & 3 kids. By all accounts John Jr. was a bright, precocious, and independent minded youngster. He was known to hang out at the lab at the brewery as a boy. Later he was educated as a chemist.

Two other things about John (which you won’t find in the reports). He was an enormous man in 3 dimensions. And, he lived an unorthodox lifestyle with his partner Emil the hairdresser on Riverside Drive not far from the train crossing. Today some might say an openly gay lifestyle, though that phrase then would have meant something quite different. Who’s to say if these circumstances played any role in the story. Interestingly though, the Estate trustees were quick to inform the courts that the Last Will of Sr. contained a spendthrift clause in respect of Junior’s inheritance, thereby casting some doubts on John Jr.’s capacity for proper decisions.

The shares had been bought in 1929. A third of the shares were put in the name of each of the 3 children. Or so John Jr. argued. But it turns out that when it came to the shares with the name John Joseph Clemens written on them, there was confusion. The reason: both the old man and the son had birth certificates with that exact name. And the estate Trustees argued that the shares really belonged to the old man, which meant the estate would get the shares, which meant that John Jr. would miss out on some serious wealth.

Well John Jr. was not to be out flanked in this conflict. He hired Mr. V. H. Little a Sudbury lawyer to take the estate trustees and others into the courtroom to resolve the dispute. The estate hired E. C. Facer, QC.

At trial before Justice Judson,  Junior lost. So he retained Little to take the case to Ontario’s Court of Appeal. Junior lost again. Justices Henderson, Aylesworth  and Hogg wrote separate decisions for the majority and Justice Laidlaw wrote the dissent in a 4-1 split decision.

for the full decision of the Court of Appeal see:

http://www.canlii.org/en/on/onca/doc/1952/1952canlii78/1952canlii78.html?searchUrlHash=AAAAAQAHY2xlbWVucwAAAAAB

Junior was undeterred. He was going to the Supreme Court of the land. Only this time, he was going to run the appeal by hisself. The estate hired a couple of hotshot SCC veterans to respond. The case was heard by Chief Justice Kerwin and 3 pusine justices. This time, the ultimate conclusion favoured Junior. The self–rep had won.

for the full Supreme Court of Canada decision see:

http://www.canlii.org/en/ca/scc/doc/1956/1956canlii3/1956canlii3.html?searchUrlHash=AAAAAQAHY2xlbWVucwAAAAAB

I wonder to myself what law library, if any, had the courage to allow John J. Clemens Jr. within its inner sanctum. I wonder if while he sat at a library table, he could make out snide remarks behind him from those more learned in the law. Whatever the case I promote the following notion. If ever this cohort of self-represented litigants is to anoint a secular patron saint for its collective cause, John Joseph Clemens Junior is the guy.

 

T. Michael Hennessy