Occams Razor, Hanlons Razor

This is a small test to see if anybody in the Canadian legal profession who ought to read this blog reads  this blog and pays attention.

I doubt it – because the existence of this blog, and its usual content, is some evidence to the contrary – but I’m prepared to be surprised.

Consider this argument. Feel free to explain why it is flawed, if you think it is and believe you can.

If you can’t, then perhaps you’ll explain why you won’t accept it.

1.  Factual causation exists where conditions exist sufficient to satisfy the applicable physical laws required for those conditions to cause – to bring about the existence of – some consequence.
2.  A but-for causal relationship is nothing more than a description of a sufficient causal relationship in an instance where there is no other sufficient causal relationship. Counterfactual analyses are implicit – meaning they are necessarily undertaken, as required –  in any valid analysis of sufficiency.
3.  It necessarily follows the but-for test (whatever it means) is not needed to identify instances of factual causation.
4.  It necessarily follows  that where but-for (whatever it means) is used, in law, as a test for causation, it is used for some purpose other than identifying factual causation. This follows because we have already identified the existence of one or more factual causes.
5.  In law, in the context of causation, the only other purpose the but-for test could have is assigning legal responsibility.
Cue Homer Simpson.
Anybody here see the houses of cards falling down?

The Fourth Monkey Speaks

monkey_holding1May 31, 2017

From June 1, 2017 onward, it won’t be quite necessary for hell to freeze over and host a New Year’s Day NHL outdoor game between the Toronto Maple Leafs and the Montreal Canadiens before this blog contains new commentary on any Canadian trial level or provincial appellate level decision dealing with proof of factual causation. However, the occasion will have to be something equally remarkable.

June 1, 2020 October 31, 2016

This blog will remain mostly dormant  inconsistently active, usually, and consistently mostly harmless, inevitably, for the foreseeable future. However, comments are now open, again, although what’s here is mostly past not prologue. But, that re-opening comes with a caveat. Click on “continue reading”, below, to read the caveat.

November 9. 2020

I wasn’t dead. Just went walkabout. But the pandemic put a crimp in those plans, at least for now.

One of the advantages of having not practising law in Ontario since the end of 2012 was that I didn’t have to explain that I wasn’t related to the person with the same surname whose name too often appeared in the Ontario Reports, in the style of cause, on the wrong side of the  “v.”.

If a wall still exists where the Osgoode Hall class-year pictures are / were hung, I’m in 1975 year’s picture. I’m wearing a brown sweater with gold rectangles tilted so the vertex of one corner points up, over a green shirt hat had white polka dots. The picture is in black and white, though, so you won’t see the colours. There might even be pictures of the 1972-75 hockey OWLS around. I’m the goalie with the longer hair, and the poor attempt at a moustache, in the first two years. The 1975 picture was taken towards the end of 3rd term. Articling was on the horizon.

For the future? Unlike Ozymandias, I look back on my own works and despair. But I’m not quite Outis, yet. If a judge of the (now defunct) House of Lords was prepared to say “never say never”, not that long ago,  who am I to disagree?

Continue reading →

The BC Follies never end

plus ça change, etc

I suppose one good consequence, effective May 1, 2021, of British Columbia abolishing most of the right to sue for personal injuries sustained in motor vehicle accidents, in British Columbia, and going to a no-fault system, is that, eventually, its trial judges and personal injury lawyers will have fewer opportunities to display one or both of (a) their apparent lack of knowledge of the applicable law or (b) their apparent belief that the Supreme Court of Canada judgments don’t apply to British Columbia.

For example, there will be few opportunties for trial judges and trial lawyers to claim that this is BC law on proof of factual causation in tort: “The ‘but for’ test recognizes that compensation for negligent conduct should only be made where a substantial connection between the injury and the defendant’s conduct is present: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.” 

It’s very possible that mistakes like this would decrease if trial judges would stop plagiarizing … I mean copying from portions of plaintiff counsels’ written submissions which were last updated sometime before 2010 and were wrong, then.

It’s worth wondering why the trial judges and lawyers who keep making this type of mistake can or won’t plagiarize … I mean cut and paste from something more current.

FooBarr Follies

14 April: Update: a few days latter, Foobarr admitted its error, restored the post, and rescinded the ‘suspension’. It never explained why or how it made the errror.

Imagine that.

_________________________

28 March: I’m about to break a personal rule and mention Facebook in some context other than legal.

Some of you might be interested in knowing that, apparently, Em Zee Be’elzeebubbles has some standards, after all.

He’s not just the Lord of The Lowly Housefly.

FooBarr has sinbinned me for reposting the meme shown at the bottom of this post on the basis that it violates FooBarr’s Community Standards. FooBarr didn’t tell me what the violation was so I presume it must be accuracy, honesty and truth.

Imagine that.

Mocking Em Zee Be'elzeebubbles.

DC

Interent News Media Comment Sections As Cesspools: Plus ça change, plus c’est la même chose

The Toronto Star commenting rules are contained in the Star’s community guidelines. The relevant portion of the guidelines appears in the “Our Story” portion of the Star’s Facebook (FB) page. It is attached at the end of this commentary. In theory, FB’s own community rules are the same in relation to posting and commenting behaviour. It maybe that the “Our Story” guidelines for the Star page on FB are the FB community rules. I have not checked. That issue does not matter for the purpose of this commentary because the comment sections on the Star’s FB page are governed by FB under FB’s rules.

In theory, if the the behaviour rules were applied, the comment sections for any Star article that’s the slightest bit controversial in any way would still be a place for civilised, informative, conversation. That is not the case, as the Star’s management must know: both in the Star’s own comment sections and those in the Star’s FB page. 

In practice, in the FB world, for reasons having to do with US law, FB decisions about what’s best for FB commercially, and whatever other reason Mr. Zuckerberg might have that he’s not revealed, FB comment sections for anything that could be controversial are a cesspool of everything they’re not supposed to be. The comment sections for the Star articles on the Star’s FB page are managed by FB’s programmes since the Star FB page and the articles are on the FB platform.

The comment sections are managed by “think dirty” malignant algorithms which, as only “dumb” computer programmes, are too often unable to distinguish between compliant and non-compliant behaviour and so adopt the the orthodox Catholic response to the Albigensian / Cathar heresy: Kill them all; God will know his own”. 

Where FB exacerbates that problem by making an appeal impractical.

Where the result is the “Bad Guys” rule.  

Where there’s no point in “The Good Man”coming to town because the algorithms will gun him down long before he gets to the point of being able to confront Liberty Valence at high noon. 

The result is that the comment sections for every article that is the slightest bit controversial to anybody are a cesspool of everything the rules say ought not to happen, even though most articles are behind the Star paywall so that all that is visible is a picture, the caption, and a bit of the lede. That’s undoubtedly because the Star is “chum central” for any right wing ‘phobe of any kind in Canada and anybody who has heard of it in the US and elsewhere who is looking for a more exotic place to shit.

If the rules were enforced by FB, as written, most of the comments would be deleted; most of the commentators banished. anybody who doesn’t want to risk mud-wrestling with pigs doesn’t visit. 

If the comment thread is started by a person with good things to say about the article, the trolls attack the person and the the article and the Star. One or more good defender may respond but there are always more trolls. The good folk don’t bother to complain to FB. It would be like bailing the World Ocean with a pinky sized thimble.

If the the comment thread is started by a troll, the troll might or might not be picked off as low-hanging fruit by a defender. The trolls will usually shit enough turds that at least one will draw some interest. If it is confronted for what it is, the troll will eventually go away, because it visisted only to shit. Or it will first complain to FB about harassment or bullying then go away; having accomplished its purpose of shitting in somebody else’s pool and fouling the water. 

The complaint to FB? That will usually trigger the algorithm to sweep up the defender, leaving the troll to troll some more. The FB response to   comments and posts which are “only” breaches of its community standards, and not illegal under US law, is a graduated series of suspensions starting at short periods of “only” no posting and commenting moving up to longer periods and finally account banning.

If both troll(s) and defender(s) are able to keep the skirmishing below whatever triggers the algorithms, the skirmishing goes on as long as troll and defender want to. Anybody else who has anything more worthwhile to do, starting at least as low as cleaning toe fungus, leaves.

 The section becomes sterile.

The Toronto Star management knows this.

Why does the Star tolerate this?

Because, in theory and practice it has no choice as regards the situation on the FB platform. The FB platform is governed by US law. The content of the Star’s articles; and the posts and comments in the comments sections are similarly governed by US law.

Hate speech is legal under US law; in the sense that the content of what we, in Canada, would call “hate speech” will be protected, under the 1st Amendment to US Constitution from prior restraint and cannot be made illegal or otherwise sanctioned (punished) by the state so long it falls within the parameters of the right of freedom of expression as explained by the Supreme Court of the United States.

FB has attempted to elide the constitutional freedom of expression protection of hate speech by including provisions prohibiting hate speech in its Community Standards. But rules, private or public, are no good if not enforced and there is not voluntary compliance. In practice the trolls do not voluntarily comply.

Indeed, if it were the case that most trolls voluntarily complied, it would also probably be the case that Trump would not have been elected President of the US in 2016 and the past 4 years would have been entirely different. If, for some reason he had been elected, the past 4 years would still have been different and he would have lost the popular vote by far more than just 5 million and some votes;   slightly than 72,200,000 Americans would  not have voted Trump.

 In practice, for a number of reasons not limited to the resources it would take for FB to adequately police the comment sections on its platform,  FB is unable to enforce the ‘no hate speech” rule without, in Albigensian Heresy terms, killing both the heretics and the innocent.

It appears that, in practice, the same situation exists in the comment sections on the Toronto Star’s own website. The Star, as Canada major politically centre-left paper, is the target for every “deplorable” in Canada, a many from outside Canada, with access to the internet and the desire to shit in somebody else’s pool. 

The unfortunate truth is that, people being what they currently are, bad tends to trump good at first instance; evil and hatred drive good away, and comment sections become sterile deserts.

For those of us who lived through the era after Compuserve was bought by AOL, then ultimately shutdown by AOL:  Plus ça change, plus c’est la même chose.

(I might add some more to this over the next two weeks; however, you should presume that it won’t change what I’ve said above.)

Canada: a new Conservative Party leader.

A brief foray into Canadian politics before I retreat back into the haze.

Canada has a new Conservative Party of Canada leader.

 
47 year old Erin O’Toole, currently an elected Conservative Party member of Parliament for an Ottawa, Ontario, area riding, has been elected as the new leader of the once and again, no longer progressive, Conservative Party of Canada. O’Toole won the race on the 3rd ballot as, apparently, he was the preferred choice of the more socially conservative voting-in-the-election members of the Conservative Party.
 
The Globe and Mail, which purports to be Canada’s national newspaper, reports:
 
“Erin O’Toole has won the race to be the next leader of the Conservative Party of Canada. Results were delayed by several hours due to envelope-opening machines accidentally slicing thousands of ballots that then had to be replicated by hand.
 
The counting went to the third ballot with close results between O’Toole and former cabinet minister Peter MacKay. In third and fourth place, respectively, were Toronto lawyer Leslyn Lewis and MP Derek Sloan.
 
O’Toole is an Ontario member of parliament who spent 12 years in the military and 10 years as a corporate lawyer. He won with 57 per cent of the vote, after running a pointed, message-driven campaign and embraced becoming the inheritor of Stephen Harper’s party.”
Quoted from The Globe and Mail morning update, August 24, 2020. The article is here. The morning update should not be behind a paywall.
 
Given the reason for the delay, and the fact that the machines in issue weren’t new – -they’d been used (or at least the problem causing machine had been used), we’re told — I should make fun of the gang of CP functionaries who ran the election. (Think of the movie “The Gang That Could’t Shoot Straight”. You can find good clips on YouTube.) However, I won’t. The CP doesn’t need my help to repeatedly shoot itself in various parts of its metaphorical body, starting with the feet.
The “Stephen Harper’s party” description is important. It was and is a dog whistle to the more socially conservative members of the Conservative Party and conservative voters in Canada; those further to the right on the Canadian political spectrum.
 
CTV News reports:
“O’Toole, an MP from Ontario, defeated Peter MacKay, clinching 57 per cent of party support, after picking up down-ballot support from Leslyn Lewis and Derek Sloan supporters.”
The CTV News article is here. The remaining quotations in this posting come from the CTV News article.
It is at least possible that Peter MacKay, a leading figure in Canadian conservative politics since the mid-1990s, was seen, at least by the Conservative Party grassroots, as too much a member of, and reminder of, the conservative movement’s chequered, less than stellar, past.
 
I’m going to usually use CP as the stand-in for Conservative Party from now on.
MacKay, ostensibly the most socially progressive, finished second, losing on what is, formally, his 4th attempt to become the leader of the CP, Canada’s major conservative party. He has now lost in 3 attempts to become leader of the CP. He was the leader of the Progressive Conservative Party when it merged in 2003 with what was then known as the Canadian Alliance, a more right-wing conservative party, and gave way to Stephen Harper, the leader of Canadian Alliance.
 
It’s worth mentioning that an earlier, briefly held, name of the Harper-led Canadian Alliance produced the acronym CRAP.
 
Mackay eventually became a high ranking member of the decade long Stephen Harper-led CP gov’t. MacKay, then hailing from Nova Scotia in eastern Canada, lost in his next attempt to lead the Canadian conservative movement: again to a person who was seen to be, and was, more socially conservative than MacKay. He lost in the CP leadership race which occurred after Harper resigned when the CP lost the 2015 election to the Justin Trudeau-led Liberal Party.
 
After the fall of the Harper gov’t in 2015, MacKay, still seemingly obsessed with becoming Canada’s PM – perhaps even more so than the once, briefly, but never again, Progressive Conservative PM Joe Clark – relocated to Ontario to shill for business on behalf of a law firm employer; and, one assumes, to concurrently become more attractive to conservative voters in Ontario. In order to win the most seats in the Canadian Parliament, a party has to either (1) win most of the available seats in one or the other of Ontario or Quebec to make up for the weakness in the other or (2) be successful enough in both that the total number of Ontario and Quebec seats negates the number of seats the conservative party wins elsewhere in the country, usually in the prairie provinces of Alberta, Saskatchewan and Manitoba.
 
From the CTV News report:
“MacKay was narrowly leading after the first ballot but he finished the race in second, while Lewis came in third with a strong showing, and Sloan finished fourth and was the first to drop off the ballot. His down-ballot support was reallocated to the remaining candidates but was not enough to decide the race.
That prompted the third-ballot round where O’Toole picked up considerable support from Lewis supporters.
In his speech, O’Toole said that there is a place in his party for all Canadians, regardless of race, religion, economic standing, education or sexual orientation. He also thanked his opponents as well as the tens of thousands of Canadians that voted for him.
. . .
 
MacKay, the candidate who ran with the most progressive platform in the race … offered his congratulations to O’Toole on social media, saying ‘it’s time for the party to come together, and to focus on what’s most important: ensuring our country gets moving in the right direction again.’”
 
Given his apparent position as the most socially progressive of the candidates, It is likely that MacKay intended the “our country … moving in the right direction” to be a significant pun; that is, a warning to O’Toole not to pander to populism; to the more socially conservative – regressive, if you prefer, portions of the conservative movement; not to move the CP too far to the right whatever “too far” might now, and in the foreseeable future, mean. MacKay was, undoubtedly, warning the broader conservative audience that too much movement to the right would not help the party’s prospects for success in upcoming elections.
 
MacKay, a perennial conservative bridesmaid, will have to once again reconsider his political future. He is not, currently, a member of Parliament.
 
There is some subtle populism, or tone deafness, in O’Toole’s “hello citizens and soon to be citizens of Canada, I’m your new hurley ball and piñata, to kick, hit, strike, piss on, curry favour with, and generally distrust” speech. It should raise some eyebrows – two for those people who have two – that in 2020 in Canada, the new leader of Canada’s major conservative party, and of the party with the second most seats in Canada’s parliament, should feel it necessary to say, in his inaugural speech “that there is a place in his party for all Canadians, regardless of race, religion, economic standing, education or sexual orientation.”
 
All of those characteristics, other than economic standing and education, are prohibited grounds of discrimination in Canada. So, if the CP did, does, and is to notionally reflect Canadian values, there has to be ”a place in his party [version of the Conservative Party] for all Canadians, regardless of race, religion … sexual orientation.” O’Toole didn’t specify what what place is; however, we should assume it is something more than dishwasher and less than javelin catcher.
That leaves “economic standing” and “education”. The recitation of these items as significant criteria should be seen as as a form of populist dog whistle to the poorer or less educated Canadian voter.
 
Some might wonder why O’Toole found it necessary to say something that should always be true about about any truly Canadian political party. Did he mean to imply something about the CP as it was before him. O’Toole was a practising lawyer in Ontario. It should be a safe assumption, notwithstanding the joke implicit in the word “assume”, that O’Toole ought to have understood what he was implying, even if his speech was given early in the morning. Again, I think it safe to assume that he’d given some thought to what he might say, if elected as CP leader, earlier that day when he wasn’t quite as tired. If not even earlier than that.
From what I can tell, O’Toole did not promise anybody better, cheaper, Guinness or a pot of gold at the end of any rainbow. Of course, if he had, he’d have had to acknowledge that the rainbow represents social ideals generally at least somewhat at odds with social conservatism, notwithstanding his inclusive reference to “sexual orientation”.
Now that the Conservative Party has a leader with a patently Irish first name and surname, it’s even more interesting to mention the source of the nickname used for members of the Conservative Party and the party, itself: Tory (for an individual member and the party) and Tories (for more than one member. Wikipedia has a succinct explanation:
The word Tory derives from the Middle Irish word tóraidhe; modern Irish tóraí; modern Scottish Gaelic Tòraidh: outlaw, robber or brigand, from the Irish word tóir, meaning “pursuit”, since outlaws were “pursued men”. The term was initially applied in Ireland to the isolated bands of guerrillas resisting Oliver Cromwell’s nine-month 1649–1650 campaign in Ireland, who were allied with Royalists through treaty with the Parliament of Confederate Ireland, signed at Kilkenny in January 1649; and later to dispossessed Catholics in Ulster following the Restoration. It was also used to refer to a Rapparee and later applied to Confederates or Cavaliers in arms. The term was thus originally a term of abuse, “an Irish rebel”, before being adopted as a political label in the same way as “Whig”. [Footnotes omitted]
There are rumblings of a the possibility of a federal election in Canada later in 2020. It remains to be seen whether O’Toole will earn political ‘hosannahs’ from conservative voters, and centrist voters willing to ‘swing to the right’, or will end up as just another political ‘ho’ whose sources of principal and principle are rarely distinguishable, or distinguished. (Puns intended.).
Cheers and goodbye, again, for now,
DC

Possible Name Change

1     Pandemic reality: Since I’m trapped, realistically, in C eh N eh D eh for the foreseeable future; that is, probably 1 year at least, I’m considering adding to the name of this blog.

“The World According To A Snark: A Currently Canadian Edition”

2     On the proper pronunciation of:  Toronto (pronounced with two “t”s, the second following the one “n”); right Mr. Featherstonehaugh; Mr Worstershire; Mr Worster? Mr Smtythe? Mr Ghoti?

August 4, 2020; Nov 10, 2020