The Fourth Monkey Speaks

monkey_holding1   Welcome to the online home of my friend and colleague David Cheifetz.  He now resides in Vancouver, British Columbia, where he is, currently, avoiding the fate of the giant ground sloth.

   Some of the material in some of his posts may sound familiar to some of you. He claims he’s merely recycling (which is good) and not plagiarizing himself  (which is bad) since he has permission.

  For those who care, this blog now has enough followers that Cheifetz will be able to make historically accurate decimation jokes.


August 23, 2015

Who to blame? Broken record time

Hinder v. Yellow Cab Company Ltd., 2015 BCSC 2069 is an for damages arising out of injury the plaintiff alleged she sustained in a motor vehicle accident on 16 December, 2010, in Vancouver BC. The action was tried in Vancouver in March 2015. Judgment was rendered in Vancouver on November 2015. The plaintiff succeeded.

If you’re not interested in reading yet another complaint about a trial judge setting out the governing law in a manner that, on its face, is not correct including not referring to the explanation of that law as set out in the  recent, governing, SCC decisions, then stop reading now.

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When I use a word

Over on Slaw, I’ve written a rant, and posted it, too, about yet another judge’s problematic use of “substantial connection” when seemingly discussing the meaning of factual causation in the Canadian law of negligence.


This one isn’t about a B.C. decision. The context is a motion by a defendant, in an Ontario action, to dismiss the action. The motion – an application for B.C. types – failed. I think it’s a safe assumption that the motion judge isn’t a regular reader of this blog, let alone a follower. Besides, the Rockies are in the way.

(Image from taken from a public domain version of the text of Lewis Carroll’s “Through The Looking Glass”. You’ll find it in c. 6.)

Another chance for the SCC to clarify causation jurisprudence – civil & common law

The SCC has now granted leave to appeal in St-Germain c. Benhaim, 2014 QCCA 2207 (CanLII); leave to appeal granted 2015 CanLII 69434 (SCC).

I have discussed the case here and here. The SCC did not, as is its current practice, provide reasons for granting leave. However, we can glean what the parties think the issues are, or are not, from these excerpts from the Applicants’ and Respondents’ factums.

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Jurisprudential aether, something in the water, or something in the air?

When the Supreme Court of Canada says “X” in 2007, and repeats “X” in 2011 adding explicitly that “X does not mean Y but means Z”, it is  reasonable to assume (is it not?) that, once word of what was said in 2007 and repeated in 2011 spreads through the “jurisprudential aether”, however long that takes, the judges of the lower courts in Canada will pay attention.

It’s always worth quoting this reminder about pecking orders in the Canadian judicial universe:

[51]  Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.

[52]  I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.

[53]  I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.

See South Side Woodwork v. R.C. Contracting, 95 AR 161, 1989 CanLII 3384 (AB QB)

Given the above, the concept of common sense, meaning whatever it is that common law judges advert to when they call on that concept to provide an explanation for a conclusion, requires us (does it not?) to conclude:

(1)  the Court of Appeal of Newfoundland and Labrador would be aware, by now, of what the Supreme Court of Canada declared an aspect of Canadian law to be, in common law Canada, almost 6 about 8  years ago, or at least about 4 years ago, because about 4 years and certainly about 6 8 years is more than enough time for some medium to transport the information contained in the SCC’s statements from Ottawa to St. John’s;

(2)  the same proposition applies to the state of knowledge of lawyers in St. John’s who practice in the relevant area of law; certainly, at least, those professing expertise in the area.

If you accept (1) and (2) what could be the explanation for what happened in the case I’ll quote from immediately after the break?

No, it’s not a case from the province on Canada’s Western coast. Or any of the territories on Canada’s northern coast. Not even a Prairies, Central Canada, mainland Atlantic Canada, or Canada’s smallest province, case.

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